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Autonomy of sport in Europe

Jean-Loup Chappelet

ISBN 978-92-871-6720-0

http://book.coe.intCouncil of Europe Publishinge22/US$44

The Council of Europe has 47 member states, covering virtually the entire continent of Europe. It seeks to develop common democratic and legal principles based on the European Convention on Human Rights and other reference texts on the protection of individuals. Ever since it was founded in 1949, in the aftermath of the Second World War, the Council of Europe has symbolised reconciliation.

sPorts Policy and Practice series

Given the impact that successive court rulings have had on the organisation of the sports movement in the past 15 years, the autonomy of non-governmental sports organisations has become a highly topical concern in Europe. It is also closely related to the issue of governance, the subject of previous Council of Europe studies.

The Enlarged Partial Agreement on Sport (EPAS) decided to explore the concept of autonomy in greater depth by studying the conceptual, political, legal, economic and psycho-sociological aspects of the subject. This study was carried out at the request of the EPAS by the Swiss Graduate School of Public Administration (IDHEAP) on the basis of a questionnaire sent to public authorities in charge of sport and to national and international umbrella sports organisations.

In addition to an analysis of the data obtained, documents produced by public authorities and sports organisations on this emerging issue are presented. This study contributes to a better understanding of the concept of autonomy and offers a clear picture of the issues involved.

Jean-Loup Chappelet is a Professor of Public Management at the Swiss Graduate School of Public Administration (IDHEAP), University of Lausanne (Switzerland). He is specialised in governance of sports organisations and international sports policy.

The Enlarged Partial Agreement on Sport (EPAS) is an agreement between a number of Council of Europe member states (32 as of 1 January 2010) which have decided to co-operate in the field of sports policy. As an “enlarged” agreement, the EPAS is open to non-member states. It works in co-operation with relevant organisations, in particular with representatives of the sports movement.

Council of Europe Publishing

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www.coe.int

Autonomyof sport in Europe

Jean-Loup Chappelet

Sports policy and practice series


French edition:

L’autonomie du sport en Europe

ISBN 978-92-871-6719-4

The opinions expressed in this work are the responsibility of the author and do notnecessarily reflect the official policy of the Council of Europe.

All rights reserved. No part of this publication may be translated, reproduced or trans-mitted, in any form or by any means, electronic (CD-Rom, Internet, etc.) or mechanical,including photocopying, recording or any information storage or retrieval system, with-out prior permission in writing from the Public Information and Publications Division,Directorate of Communication (F-67075 Strasbourg Cedex or [email protected]).

Cover design and layout: Documents and Publications Production Department (SPDP),Council of EuropeCover photo: © Shutterstock and Council of Europe

Council of Europe PublishingF-67075 Strasbourg Cedexhttp://book.coe.int

ISBN 978-92-871-6720-0© Council of Europe, April 2010Printed at the Council of Europe

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Contents

Preface ............................................................................................ 5

Introduction ...................................................................................... 7

1. Overview of the recognition of the concept of autonomy.................. 11Recognition of the concept of sports autonomy by sports organisations .. 11Recognition of the concept of sports autonomy by public authorities ...... 16

2. Examples concerning sports organisations’ autonomy...................... 21Government interference in national sports organisations..................... 21(Inter)governmental interference in international sports organisations ..... 22Cases brought before national and European courts............................ 23Intrusions in sports organisations’ autonomy by other sportsorganisations.................................................................................. 27

3. Analysis of replies to the EPAS questionnaire on autonomy in sport ... 29The public sports authorities’ point of view ......................................... 30The sports organisations’ point of view .............................................. 33

4. Restrictions on sports organisations’ autonomy................................ 37Restrictions resulting from state law.................................................... 37Restrictions resulting from lex sportiva ................................................ 41Horizontal versus vertical autonomy .................................................. 45

5. Summary ................................................................................... 49

6. Best practices in negotiated autonomy ........................................... 53Council of Europe ........................................................................... 53European Commission ..................................................................... 54World Anti-Doping Agency .............................................................. 56Fédération Internationale de Football Association (FIFA)....................... 56The European Olympic Committees (EOC) ......................................... 57Union of European Football Associations ........................................... 57France ........................................................................................... 58

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Germany ....................................................................................... 59Hungary ........................................................................................ 60Italy............................................................................................... 60Netherlands ................................................................................... 62Switzerland .................................................................................... 62

Bibliography................................................................................... 65

Appendices.................................................................................... 67Appendix 1: EPAS questionnaire on autonomy in sport in Europe ......... 68Appendix 2: Working document and Resolution No. 2on autonomy in sport adopted by the 11th Council of EuropeConference of Ministers responsible for Sport, Athens,10-12 December 2008.................................................................... 80Appendix 3: Chronological study of the Olympic Charterand a selection of documents issued by sports organisationswith regard to the concept of autonomy ............................................. 89

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PrefaceThis book was commissioned in 2008 by the Council of Europe’s EnlargedPartial Agreement on Sport (EPAS) from the IDHEAP (Swiss Graduate Schoolof Public Administration), which is associated with the University of Lausanne(Switzerland). It is based on a survey carried out in the spring of 2008 bythe Council of Europe, which sent a questionnaire to European sports andgovernmental authorities. The survey was repeated in the spring of 2009,particularly to give national Olympic committees and national sports confed-erations an opportunity to reply in greater numbers than they had on the firstoccasion (see questionnaire at Appendix 1). Furthermore, an analysis ofofficial documents issued by public authorities or European sports organisa-tions enables the question of sports autonomy to be viewed in the context ofnot only the rules of the different sports, but also national and European law.

An initial version of this report was put forward in Athens (Greece) inDecember 2008 during the 11th Council of Europe Conference of Ministersresponsible for Sport. The two subjects on which the conference focused werein fact autonomy in sport and ethics in sport. A working document and theresolution on autonomy in sport are reproduced in Appendix 2.

It has been possible to do this work in a very short period of time thanks tothe assistance of two holders of the Master of Advanced Studies in SportAdministration diploma awarded by the International Academy of SportsScience and Technology: Amandine Bousigue and Benjamin Cohen. I ammost grateful to them for their help and feel sure that this experience will be ofgreat use to them in their future careers with international sports organisations.

The author particularly wishes to thank the EPAS and its secretariat, whichprovided support throughout the work. He would also like to thank France,which helped, in particular, to devise the operational method used to ensurethat the survey of public and sports authorities was diligently carried out, andwhich followed every phase of the survey at meetings held in Strasbourg.

He would also like to mention the European experts consulted, who made itpossible to identify the best practices in “negotiated autonomy” highlightedhere.

The opinions which this book contains are those of the author and are not inany way binding on the Council of Europe EPAS or the persons consulted.

Lausanne, July 2009

Jean-Loup ChappeletProfessor, IDHEAP

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Introduction

In Europe, as from the end of the 19th century, the bodies responsible for thecodification of sports rules and the organisation of competitions generallytook the form of non-profit-making associations. In this capacity, thanks tonational legislation guaranteeing freedom of association, they enjoyed con-siderable autonomy from government in most European countries. It can evenbe said that, for most of the 20th century, the majority of European statesallowed sports organisations to develop as bodies fully independent of thepublic authorities. For many years, clubs, regional and national federationsand European or international federations, not to mention national Olympiccommittees (NOCs) and the International Olympic Committee (IOC), operatedin virtually complete independence of local and national government andwere self-regulating, while sport itself was becoming an increasingly importantsociocultural and economic sector.

During the 1970s the Council of Europe became the first European intergov-ernmental organisation to take a real interest in this sector and to work withthe sports movement. In 1976 it adopted the European Sport for All Charter,which was replaced by the European Sport Charter in 1992. It concerneditself with issues such as doping and spectator violence, which led to theadoption of a major convention on each of these subjects. Although theEuropean Court of Justice (ECJ) delivered two judgments concerning the sportssector during the 1970s, it was not until the 1990s that the European Unionbegan to intervene in sport, once sport had become an economic activity(the EU confined itself solely to this aspect, since there was no EU competencefor sport in general at the time). The ECJ’s Bosman judgment, delivered in1995, was perceived by the sports movement as governmental intrusion intothe autonomy of national and international sports organisations (those deal-ing with football, in this particular case).

In subsequent years a growing number of sport-related cases were broughtbefore the European or national courts. Many were decided in favour of thesports organisations concerned, but a number of verdicts called into questioncertain sports rules and were regarded by the federations as encroaching ontheir autonomy. The sports movement began to call for a “sports exception”in Community law, or at least to emphasise the “specificity” of sport. Thegovernments of the EU member states heeded these demands, going so faras to include in the Treaty of Lisbon of 2007 a provision (Article 149) on thepromotion of sporting issues “while taking account of the specific nature ofsport, its structures based on voluntary activity and its social and educationalfunction.”

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However, this development did not really satisfy the European and inter-national sports movement, since the “specific nature” of sport had not beenclarified in that article. In 2006 the Independent European Sport Review,commissioned by the UK presidency of the EU, drew attention to the degreeof legal uncertainty that still existed as regards the relationship betweenCommunity law and sporting regulation. According to the international sportsorganisations this uncertainty curtailed their autonomy. In July 2006 the ECJ’sMeca-Medina judgment reinforced their fears. Although it found in favour ofthe sports organisations concerned (the International Swimming Federationand the IOC), the ECJ stated, inter alia: “If the sporting activity in questionfalls within the scope of the Treaty, the conditions for engaging in it are thensubject to all the obligations which result from the various provisions of theTreaty.” This enigmatic phrase caused a strong reaction from the Europeansports federations and the IOC and FIFA (the Fédération Internationale deFootball Association), since they regarded it as a significant retrograde stepcompared with earlier precedents set by the ECJ, and felt that there was anincreased threat to their autonomy. It is true that most sports activities have aneconomic, or business, dimension and accordingly fall within the scope of theEU treaties. In addition, the concept of the conditions for engaging in a sportis very broad and covers themes such as athletes’ nationality and the anti-doping rules (challenged in the Meca-Medina case), which had until then beenregarded as an autonomous preserve of the sports organisations. The titleof the ECJ’s press release even read “The International Olympic Committee’srules on doping control fall within the scope of Community competition law.”

The IOC then held a seminar in Lausanne in September 2006 on the auton-omy of the Olympic and sports movement, to which it invited a number of itsown members and the presidents of international federations and nationalOlympic committees. This seminar reasserted that autonomy was essential tothe preservation of the values inherent in sport. A second seminar was organ-ised by the IOC in February 2008. This one was devoted to a discussion ofthe “Basic Universal Principles of Good Governance of the Olympic andSports Movement” as the fundamental basis for securing the autonomy of itsmember organisations and ensuring that this autonomy is respected by theirpartners.1 The autonomy of the Olympic Movement has been chosen as oneof the sub-themes of the 2009 Olympic Congress (under the theme of “TheStructure of the Olympic Movement”). It was also a key item on the agendaof a meeting between the IOC and eight European secretaries of state forsport or their representatives, held in Lausanne in January 2008, and wasdue to be included on the agenda for regular meetings between the EuropeanCommission and the Olympic Movement starting in January 2009.

1. The seventh and last principle is entitled “Harmonious relations with governments whilepreserving autonomy”. In particular it recommends co-operation, co-ordination and consultationwith government bodies as the best way for sporting organisations to preserve their autonomy.

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Introduction

It can therefore be seen that, almost 15 years after the Bosman judgment,the autonomy of non-governmental sports organisations (sometimes abbrevi-ated to sports autonomy) has become a highly topical concern. It has almostreplaced specificity, the previously dominant and very closely related theme.It brings to mind − to varying degrees − the synonymous concepts of theindependence and self-regulation of the sports movement. It is also very closelylinked to the issue of governance, addressed by earlier Council of Europestudies and by the 10th Conference of European Ministers responsible forSport, held in Budapest in 2004.

This subject raises many questions: Autonomy in relation to whom? Concerningwhich aspects? On what legal basis? Within which limits? Using which instru-ments? How is autonomy defined? The purpose of this book is to clarify theconcept of sports autonomy. The first part gives an overview of recognitionof the concept of autonomy in sports rules and regulations and in internationallaw. The second part cites a number of examples of challenges to the auton-omy of sports organisations resulting from government, judicial or otherinterference. The third part analyses the replies to a questionnaire on thesubject sent out by the Enlarged Partial Agreement on Sport (EPAS) in 2008and 2009. The fourth part investigates the restrictions on sports organisations’autonomy resulting from state law and lex sportiva (sporting rules and regu-lations as a whole). It presents the concepts of horizontal and vertical auton-omy. The fifth part sets out the conclusions and proposes an operationaldefinition of autonomy in sport. It introduces the concept of “negotiatedautonomy”. The sixth describes some of the best negotiated autonomy prac-tices in Europe.

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1. Overview of the recognitionof the concept of autonomy

To determine in which contexts the concept of autonomy is recognised, weshall first examine the instruments issued by sports organisations, followedby those originating from public authorities.

Recognition of the concept of sports autonomyby sports organisationsThis section is based on Appendix 3 to this report. We shall first considerrecognition of the concept of autonomy in the Olympic Charter, that is theentire set of rules laid down by the IOC, governing its own functioning andthat of the Olympic Movement; these rules went by various names until thedesignation “Olympic Charter” was finally adopted. Then we shall look atthe rules of a number of international sports federations (IFs). For a briefpresentation of the IOC, the IFs and the Olympic Movement, reference canbe made to Chappelet (2008).

Under Pierre de Coubertin’s concept, which still holds true for the IOC, mem-bers were independent of their governments and represented the OlympicMovement within their country, rather than their country on the IOC. They wereaccordingly politically autonomous, and this autonomy was often reinforcedby their financial independence. This autonomous status enjoyed by each ofits members and its own resources allowed the IOC itself to be independent ofpolitical institutions, from which it received no subsidies. (The sole exception,in theory, was that members of the IOC belonging to royal families could noteasily adopt a position differing from that of their governments.)

However, it was not until 1949 that the term autonomy first appeared inthe Olympic Charter, and with regard not to members of the IOC but to thenational Olympic committees (NOCs). Under Rule 25 of the charter of 1949,2being “independent and autonomous” became a requirement for recognitionof the NOCs. This condition had not been mentioned in earlier versions ofthe charter, but had been discussed at a meeting of the IOC Executive Boardand the international federations in 1946, during which a resolution waspassed on joint resistance to any kind of political or commercial pressure.It can be noted that this criterion of autonomy was added to other olderrequirements at a time when the IOC was beginning to recognise NOCs

2. The IOC regularly amends the Olympic Charter. The successive versions are therefore identifiedby their year of adoption by the session (annual general meeting) of the IOC. The numberingof the rules may change as new provisions are added or deleted.

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within the Soviet bloc, not least in the USSR, a country which participated inthe Olympic Games for the first time in 1952. It is therefore clear that whatthe IOC members had in mind was preserving independence and autonomyfrom governments, in particular those of Communist countries.

In 1955 this provision was strengthened. Rule 24 included a provision that“National Olympic Committees must be completely independent and auton-omous and entirely removed from political, religious or commercial influence.”The following year this provision became a separate rule (25), printed inbold type. In 1958 it was added that NOCs which failed to comply with thisrule would forfeit their recognition and lose the right to send participants tothe Olympic Games. Note can be taken of the inclusion of a reference tocommercial influence, which coincided with the timid beginnings of sponsor-ship and television rights at the Melbourne Games in 1956.

In 1968 the model constitution for a national Olympic committee, then partof the Olympic Charter (it has since been deleted), provided that membersof an NOC were obliged to inform the IOC of any political interference inits operations. In 1971 Rule 24 provided that: “Governments cannot designatemembers of National Olympic Committees. ... In the event of any regulationsor actions of the National Olympic Committee conflicting with InternationalOlympic Committee Rules, or of any political interference in its operations,the International Olympic Committee member in that country must report onthe situation” to the President of the IOC.

In 1989 the implementing provisions (“bye-law”) concerning Rule 24 recom-mended to NOCs that they “raise funds to enable them to maintain their fullindependence, in particular from the government of their country or from anyother organisation that controls sport in the country. Fund raising must, how-ever, be undertaken in a manner that preserves the dignity and independenceof the NOC from commercial organisations.” It can be noted that this provi-sion was introduced at a time when several NOCs were, like the IOC, begin-ning to develop significant sponsorship activities.

The following are the main provisions of the Olympic Charter currently inforce (2007) as regards autonomy and related concepts:

Rule 28 Mission and role of the NOCs

…

3. The NOCs have the exclusive authority for the representation of their respect-ive countries at the Olympic Games and at the regional, continental or worldmulti-sports competitions patronised by the IOC. In addition, each NOC is obligedto participate in the Games of the Olympiad by sending athletes.

4. The NOCs have the exclusive authority to select and designate the city whichmay apply to organise Olympic Games in their respective countries.

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Overview of the recognition of the concept of autonomy

5. In order to fulfil their mission, the NOCs may co-operate with governmentalbodies, with which they shall achieve harmonious relations. However, they shallnot associate themselves with any activity which would be in contradiction withthe Olympic Charter. The NOCs may also co-operate with non-governmentalbodies.6. The NOCs must preserve their autonomy and resist all pressures of any kind,including but not limited to political, legal [qualifier added in 2004],3 religiousor economic pressures which may prevent them from complying with the OlympicCharter.…9. Apart from the measures and sanctions provided in the case of infringementof the Olympic Charter, the IOC Executive Board may take any appropriatedecisions for the protection of the Olympic Movement in the country of an NOC,including suspension of or withdrawal of recognition from such NOC if theconstitution, law or other regulations in force in the country concerned, or anyact by any governmental or other body causes the activity of the NOC or themaking or expression of its will to be hampered. The IOC Executive Board shalloffer such NOC an opportunity to be heard before any such decision is taken.Rule 29 Composition of the NOCs…4. Governments or other public authorities shall not designate any members ofan NOC. However, an NOC may decide, at its discretion, to elect as membersrepresentatives of such authorities.…Bye-law to Rules 28 and 29…3. RecommendationsIt is recommended that NOCs:…3.4 seek sources of financing in a manner compatible with the fundamentalprinciples of Olympism.

It can therefore be seen that, as from the mid-20th century, the IOC recognisedand required in the Olympic Charter that NOCs should be autonomous vis-à-vis governments (from both a political and a legal standpoint), and also vis-à-vis economic or religious authorities. This position has been fully supportedsince its foundation in 1990 by the ENGSO (European Non-GovernmentalSports Organisation), an association which brings together Europe’s nationalsports confederations (many of which act as NOCs).

Furthermore, for about the past 15 years, the IOC has expressly recognisedthat international sports federations (IFs) are independent of it (Rule 26 of the

3. The IOC was apparently concerned about pressure from state legal systems and, in particular,from Community law.

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2007 charter), subject to compliance with the charter and, since 2004, withthe World Anti-Doping Code:

The statutes, practice and activities of the IFs within the Olympic Movementmust be in conformity with the Olympic Charter, including the adoption andimplementation of the World Anti-Doping Code. Subject to the foregoing, eachIF maintains its independence and autonomy in the administration of its sport.

Owing to its refusal to accept the World Anti-Doping Code, the FIA (theinternational motor sport federation) is no longer recognised as an IF by theIOC. The latter also forced a number of IFs − those responsible for ice skating(in 2002) and boxing, fencing, gymnastics and taekwondo (in 2004) − torevise what it regarded as the insufficiently impartial rules applied by thesesports’ judges.

The IOC today describes autonomy as a necessity for the Olympic and sportsmovement, since autonomy guarantees the preservation of the values of sport,the integrity of competitions, the motivation and participation of volunteers,the education of young people and their contribution to the well-being of all,women, men and children, thereby contributing to its credibility and legiti-macy. According to the IOC, only an autonomous movement, namely one thatis self-regulated and self-managed without any interference, can guarantee “aphilosophy of life, exalting and combining in a balanced whole the qualitiesof body, will and mind” (Fundamental Principles of Olympism) (see VOC,2009, p. 1671). In expressing these views, the IOC echoes the writings ofits founder, who 100 years ago wrote that “the goodwill of all the membersof any autonomous sport grouping begins to disintegrate as soon as thehuge, blurred face of that dangerous creature known as the state makes anappearance” (Coubertin, 2009, p. 152).

In the same way as the IOC acknowledges the autonomy of IFs and NOCs,IFs in turn acknowledge the autonomy of their national federations (NFs),provided that the latter comply with the rules laid down at global level by theIF for the sport in question. However, the degree of this autonomy may vary,depending on the IF concerned.

For example, the statutes of the FISA (the International Rowing Federation),the UCI (International Cycling Union), the FEI (the International EquestrianFederation), the FIG (International Gymnastics Federation), the ITF (InternationalTennis Federation) and the FIS (International Ski Federation) strongly assertthis principle (quoted by Latty (2007, p. 130) and Simon (1990, p. 84)):

FISA shall have no part in purely national questions. It shall allow its memberfederations complete autonomy internally. [Article 4 of the FISA Statute]

The UCI will carry out its activities in compliance with the principles of: … non-interference in the internal affairs of affiliated federations. [Article 3 of the UCIConstitution]

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Nothing in the Statutes shall authorise the FEI to intervene in national equestrianor any other matters not under the jurisdiction of the FEI, or shall entitle NationalFederations to submit such matters to the FEI for settlement under these Statutes.[Article 61 of the 21st edition of the Statutes of the FEI (no longer included inthe current edition)]

Federations, continental unions and regional groups retain their entire auton-omy and independence of action within the limits imposed by these Statutes.[Article 31 of the FIG Statutes]

The objects and purposes for which [the ITF] is established are to ... preservethe independence of [the ITF] in all matters concerning the game of tennis with-out the intervention of any outside authority in its relations with its Members.[Article IV.j of the ITF Memorandum of Association]

The FIS respects the autonomy of its affiliated National Ski Associations.[Article 4.2 of the FIS Statutes]

The International Mountaineering and Climbing Federation (UIAA) evenrecognises the principle of subsidiarity in its internal affairs: “The UIAA shallnot undertake any activity which is more effectively done by its memberassociations” (Article 4 of the Articles of Association).

Other IFs are far less explicit. Examples are FIFA (the Fédération Internationalede Football Association), UEFA (the Union of European Football Associations)and the IAAF (International Association of Athletics Federations). For instance,the FIFA Statutes do not use the word “autonomy”. Mention is merely madeof the independence of members, namely the 208 national federations:

Article 17 Independence of Members and their bodies

1. Each Member shall manage its affairs independently and with no influencefrom third parties.

2. A Member’s bodies shall be either elected or appointed in that Association.A Member’s statutes shall provide for a procedure that guarantees the completeindependence of the election or appointment. [2009 version]

Similarly, the word “autonomy” cannot be found in the UEFA Statutes, whichinstead impose a requirement regarding elections within member associations:

Member Associations must provide for the free election of their executive body.This obligation shall be included in their statutes. Where there is no such pro-vision or where the Executive Committee considers an executive body of aMember Association not to have been established by free elections, the ExecutiveCommittee shall have the power to refuse to recognise an executive body, includ-ing an executive body set up on an interim basis. [Article 7 bis. 2, June 2007]

Nor does the IAAF use the word “autonomy”, since Article 1 of its statutesmerely states that it is made up of regularly elected member federations,which commit themselves to comply with its statutes and abide by the rulesand regulations.

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The pressure exerted by the IFs on NFs’ autonomy therefore varies accordingto the sport and the subject concerned. Similarly, the autonomy of the contin-ental associations in relation to the IFs for their sport varies greatly. The IOCexercises greater scrutiny over the autonomy of the NOCs than over that ofthe IFs. Generally speaking, this primarily concerns autonomy vis-à-vis govern-ments, although other third parties are also taken into consideration.

Recognition of the concept of sports autonomyby public authorities

This section first discusses recognition of the concept of autonomy in docu-ments issued by intergovernmental organisations on sport-related themes(UNESCO, the Council of Europe, the European Union), followed by Europeancountries’ national legislation.

It is firstly interesting to note that the concept of sports autonomy is not men-tioned in three intergovernmental instruments of the 1970s and 1980s relat-ing to sport: the European Sport for All Charter, adopted by the Council ofEurope in 1976 in the form of a recommendation to member states; theInternational Charter of Physical Education and Sport, adopted in 1978 bythe General Conference of UNESCO; and the Anti-Doping Conventionadopted in 1990 by the member states of the Council of Europe following anumber of recommendations issued as long ago as the 1970s.

It was from the end of the 1980s onwards that sports organisations’ autonomybegan to be referred to by European intergovernmental organisations, par-ticularly at meetings of the Council of Europe’s Committee for the Developmentof Sport (CDDS). In 1992 the Council introduced the concept in Article 3 ofthe European Sports Charter:

Voluntary sports organisations have the right to establish autonomous decision-making processes within the law. Both governments and sports organisationsshall recognise the need for a mutual respect of their decisions. [Article 3.3]

The issue was discussed at the 9th European Sports Forum, held in Lille in2000 under the aegis of the European Commission, which brought togetherall the European sports organisations and the public authorities concerned.Paragraph 10 of the conclusions of the working party on the specific natureof sport read:

The participants urge that thought be focused on what constitutes the unique-ness of sport (its social and educational role, etc.) and on the consequences ofthis uniqueness (acknowledging the autonomy of sport for all rules of a non-economic nature: the rules of the game, protection of young people, provisionsto guarantee fair competition, to ensure solidarity or to promote sport amongthe population at large).

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At this gathering, sports autonomy was perceived as a consequence of thespecificity of sport, which had become a general concern following theBosman judgment delivered five years earlier.

At the end of 2000, following the European Commission’s report on sportsubmitted to the European Council in Helsinki in December 1999, the headsof state and government of the European Union, gathered in Nice under theFrench presidency, adopted a declaration on the theme of sport. For lack ofa ratified treaty giving the European Commission competence in this field,this “Nice Declaration” remains the highest-ranking instrument on sport forthe 27 EU member states. Point 7 of this declaration reads:

The European Council stresses its support for the independence of sports organ-isations and their right to organise themselves through appropriate associativestructures. It recognises that, with due regard for national and Community legis-lation and on the basis of a democratic and transparent method of operation, itis the task of sporting organisations to organise and promote their particularsports, particularly as regards the specifically sporting rules applicable and themake-up of national teams, in the way which they think best reflects theirobjectives.

The issue of autonomy was also addressed at length in Chapter 4 (“Theorganisation of sport”) of the European Commission’s White Paper on Sport,published in July 2007, which states, inter alia:

The Commission acknowledges the autonomy of sporting organisations andrepresentative structures (such as leagues). Furthermore, it recognises that govern-ance is mainly the responsibility of sports governing bodies and, to some extent,the Member States and social partners. Nonetheless, dialogue with sportsorganisations has brought a number of areas to the Commission’s attention,which are addressed below. The Commission considers that most challenges canbe addressed through self-regulation respectful of good governance principles,provided that EU law is respected, and is ready to play a facilitating role or takeaction if necessary.

4.1 The specificity of sport

Sport activity is subject to the application of EU law. This is described in detailin the Staff Working Document and its annexes. Competition law and InternalMarket provisions apply to sport in so far as it constitutes an economic activity.Sport is also subject to other important aspects of EU law, such as the prohibitionof discrimination on grounds of nationality, provisions regarding citizenship ofthe Union and equality between men and women in employment.

At the same time, sport has certain specific characteristics, which are oftenreferred to as the “specificity of sport”. The specificity of European sport can beapproached through two prisms:

– The specificity of sporting activities and of sporting rules, such as separatecompetitions for men and women, limitations on the number of participants incompetitions, or the need to ensure uncertainty concerning outcomes and to pre-serve a competitive balance between clubs taking part in the same competitions;

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– The specificity of the sport structure, including notably the autonomy anddiversity of sports organisations, a pyramid structure of competitions from grass-roots to elite level and organised solidarity mechanisms between the differentlevels and operators, the organisation of sport on a national basis, and theprinciple of a single federation per sport;…

As is explained in detail in the Staff Working Document and its annexes, thereare organisational sporting rules that – based on their legitimate objectives – arelikely not to breach the anti-trust provisions of the EC Treaty, provided that theiranti-competitive effects, if any, are inherent and proportionate to the objectivespursued. Examples of such rules would be “rules of the game” (for example,rules fixing the length of matches or the number of players on the field), rulesconcerning selection criteria for sport competitions, “at home and away fromhome” rules, rules preventing multiple ownership in club competitions, rulesconcerning the composition of national teams, anti-doping rules and rules con-cerning transfer periods.

However, in respect of the regulatory aspects of sport, the assessment whethera certain sporting rule is compatible with EU competition law can only be madeon a case-by-case basis, as recently confirmed by the European Court of Justicein its Meca-Medina ruling. The Court provided a clarification regarding theimpact of EU law on sporting rules. It dismissed the notion of “purely sportingrules” as irrelevant for the question of the applicability of EU competition rulesto the sport sector.

The Court recognised that the specificity of sport has to be taken into considera-tion in the sense that restrictive effects on competition that are inherent in theorganisation and proper conduct of competitive sport are not in breach of EUcompetition rules, provided that these effects are proportionate to the legitimategenuine sporting interest pursued. The necessity of a proportionality test impliesthe need to take into account the individual features of each case. It does notallow for the formulation of general guidelines on the application of competitionlaw to the sport sector.

In its report on the White Paper, published in April 2008, the EuropeanParliament also expresses full support for respect for the autonomy of sportand of its representative bodies.

In January 2008 the Parliamentary Assembly of the Council of Europeunanimously adopted Resolution 1602 (2008) on the need to preserve theEuropean Sport Model, in which it stated “The independent nature of sportand sports bodies must be supported and protected, and their autonomy toorganise the sport for which they are responsible should be recognised. Thefederation must continue to be the key form of sporting organisation, provid-ing a guarantee of cohesion and participatory democracy.”

It also called on the governments of member states to “acknowledge and givepractical effect to the specificity of sport and protect the autonomy of sportsfederations (governing bodies)”.

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In the end, the only recent European intergovernmental instrument that failsto mention the concept of autonomy is the Enlarged Partial Agreement onSport (EPAS), which was adopted in 2007. The 11th Council of EuropeConference of Ministers responsible for Sport, prepared by the EPAS andheld in Athens in December 2008, nonetheless made autonomy one of itskey themes, and culminated in the adoption of a resolution emphasising theimportance of the autonomy of sports organisations and stating that theproposed definition was useful (see Appendix 2).

National legislation addresses the concept of autonomy in very differentways. As stated in the European CommissionWhite Paper on Sport, “Europeansport is characterised by a multitude of complex and diverse structures whichenjoy different types of legal status and levels of autonomy in Member States.”The same applies to the member states of the Council of Europe. It will beseen in the third part of this book that 16 of the 29 countries which repliedto the EPAS questionnaire mention the autonomy of the sports movement intheir law on sport.

In the context of this report it is not possible to undertake an exhaustive studyof status and level of autonomy. Some authors have written entire books onthe links between national legislation and sporting rules and regulations.Examples are Jean-Marc Duval (2002) and Frank Latty (2007), who devotesthe whole of the second part of his work to the degree of autonomy of lexsportiva within the state framework (pp. 419-618), followed by the inter-national framework (pp. 619-766). In particular he discusses the situation inFrance, which is quite a special case, since the country’s sports federations,while often delegated public authority for their sport, remain under the closesupervision of the ministry of sport via the model statutes and numerouslegislative measures in force.

The other extreme is represented by countries such as Germany (which has nofederal law on sport), whose national sports organisations enjoy a very highdegree of autonomy, the federal and Länder governments having delegatedpolicy making in the field of sport to them. Chaker (1999, p. 22) writes thatthe autonomy of the sports movement is one of the three principles on whichimplementation of this policy is based, the other two being subsidiarity andpartnership between public and sporting authorities.

In general, reference can be made to the surveys on national sports legisla-tion and on good governance in sport commissioned by the Council of Europe(Chaker, 1999 and 2004). The author, André-Noël Chaker, divides therespondent countries into two categories (Chaker, 2004, p. 7):

– Those with non-interventionist sports legislation (Austria, Cyprus, theCzech Republic, Denmark, Finland, Germany, Latvia, Lithuania, theNetherlands, Switzerland, the United Kingdom) where sports organisa-tions can be presumed to enjoy greater autonomy; and

20


– Those with interventionist legislation (Armenia, Azerbaijan, Croatia,Estonia, France, Georgia, Hungary, Italy, Luxembourg, Romania,Slovenia, Spain), where there is potentially less autonomy.

As this classification may be deemed too rudimentary, reference can also bemade to that proposed by the Vocasport project on employment in sportacross Europe, which was funded by the European Commission and con-cerned the 27 EU member states (Camy et al., 2004). It identified four mainconfigurations that national sports systems may assume, according to thedominant role played by a particular sector:– the “missionary configuration” (in which the voluntary sports movement

predominates): Austria, Denmark, Germany, Italy, Luxembourg andSweden;

– the “bureaucratic configuration” (in which the public authorities pre-dominate): Belgium, Cyprus, the Czech Republic, Estonia, Finland,France, Greece, Hungary, Latvia, Lithuania, Malta, Poland, Portugal,Slovakia, Slovenia and Spain;

– the “entrepreneurial configuration” (in which private stakeholders pre-dominate): Ireland and the United Kingdom;

– the “social configuration” (in which social agents predominate): theNetherlands.

It can be said that sports organisations’ autonomy is greatest under the mis-sionary configuration, followed by the social configuration and then theentrepreneurial configuration. The bureaucratic configuration leaves sportsorganisations far less scope for autonomy or, to be more precise, strictlyregulates their autonomy through legislation.

These observations, which tend to overgeneralise, should naturally be tem-pered by country-by-country studies. It can nonetheless be noted that there isa strong correlation between the general perception of autonomy voiced byrespondents to the EPAS questionnaire (see Part 3 of this report) and theircountry’s configuration according to the Vocasport classification.

To conclude the first part of this report, it can be seen that the concept of theautonomy of sports organisations, in particular NOCs, was clearly recognisedby the Olympic Movement as early as the 1950s, and by European inter-governmental organisations from the 1990s. All have regularly reassertedthis principle in the early years of the third millennium. However, it is strikingthat the documents issued by both sports and governmental organisationssay little about this concept and propose no definition for it. In the next partof the report we will seek to narrow down this concept, drawing on Europeanexamples.

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2. Examples concerning sportsorganisations’ autonomy

We shall first look at government interference in national sports organisations,followed by international ones. Then we shall consider a number of casesrelating to autonomy dealt with by national courts, and subsequently casesbrought before the European courts.

Government interference in national sportsorganisationsThere are numerous examples of such interference, but it truly poses a prob-lem where it results in the provisional or permanent suspension of the nationalsports organisation concerned (NOC or national federation) by the governinginternational sports organisation (the IOC or the IF).

More often than not these cases concern repeated ministerial meddling withthe composition of NOCs or NFs or with their elections. It was on this groundthat the IOC suspended Iraq’s NOC in 20084 and Panama’s in 2007, andrefused to recognise the election of new leaders of the Albanian NOC in2009. Difficulties also arose in Kuwait in 2008, which led the IOC to super-vise the elections to the country’s NOC, and subsequently to threaten tosuspend it in August 2009. This is a sensitive issue since many non-EuropeanNOCs are chaired by sports ministers, or even by the president of the coun-try concerned (Nauru, Tajikistan, etc.).

Similarly, in 2008, FIFA (Fédération Internationale de Football Association)suspended the national football federations of Albania and Madagascar. Italso threatened to suspend the Spanish federation due to government attemptsto make it hold early elections. In the end, the government backed down forfear that the Spanish team would be barred from the Euro 2008 champion-ship. In 2006 FIFA briefly suspended Greece’s football federation on accountof draft legislation reinforcing state control of the sport (in particular to preventmatch fixing). It thereby pressured the Greek Parliament into making footballa genuine exception to the country’s sports law.

4. In the end, following an agreement with the Iraqi Government, the IOC allowed four Iraqiathletes to participate in the Beijing Games under the authority of the officials of the suspendedNOC and invited five government observers to the games in exchange for an undertakingconcerning the transparent and fair election of an independent NOC. An association defend-ing the rights of Iraqi athletes had considered lodging a complaint against the IOC with theInternational Court of Justice in The Hague, which would have been the first-ever attempt tosubmit an IOC decision on recognition to an international court established to settle disputesbetween state governments.

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Interference restricting the very activities of NOCs or NFs is less frequent.The first significant example came when the United States Government inter-vened in 1980 to prevent the US NOC and those of other countries fromparticipating in the Moscow Olympic Games. Most European NOCs refusedto bow to this pressure to boycott the games, sometimes strongly relayed bytheir own governments (as was the case in the United Kingdom and in Italy),thus demonstrating their political autonomy. The German NOC, like thoseof many non-European countries, nonetheless decided not to send a teamto Moscow. Similarly, the NOCs of many countries of eastern Europe (apartfrom Romania) could not resist the Soviet Government’s call to boycott theLos Angeles Olympics in 1984. In 1999 the IOC also suspended the NOCof Afghanistan, whose government, dominated by the Taliban, had barredwomen from participating in sport. In 2003 it suspended Iraq’s NOC, headedby one of the then president’s sons, for failing to comply with the OlympicCharter and, above all, for the torture of athletes.

(Inter)governmental interferencein international sports organisationsAs a result of the transnational nature of international sports organisations,which usually allows them to avoid government control, cases of such inter-ference are rare. Mention can nonetheless be made of the United Nationsresolutions on apartheid (the last of them in 1985), which caused internationalsports organisations gradually to suspend their relations with South Africa(until 1992) and Rhodesia (until 1980), although the NOCs or NFs of thesecountries were sometimes recognised and often racially integrated. In 1992the UN also decreed a trade embargo on Yugoslavia, then in the throes of civilwar. Spain, which was hosting the Barcelona Olympics the same year, appliedthis embargo, obliging the IOC to allow athletes from former Yugoslavia toparticipate as “independent athletes” although at the time it still recognisedthe then Yugoslav NOC (since superseded by Serbia’s).

The case of the Taiwanese athletes’ withdrawal from the Montreal SummerOlympics in 1976 also pointed to a decline in the IOC’s autonomy, fromwhich it drew certain lessons. A few days before the opening of these games,the Canadian Government went back on its earlier promises and refusedthese athletes leave to enter the country because it recognised the People’sRepublic of China as the sole government of China. The IOC protested butto no avail, and the Taiwanese turned down a last-minute compromise offeredby the Canadian Government (Bousigue, 2008). Ever since, the Olympicidentity card, issued by the Organising Committee for the Olympic Games(OCOG) to the athletes selected to participate, has served as a visa author-ising entry into the host country. In addition, the IOC requires candidatecities wishing to host the Games, and their governments, to provide writtenguarantees of compliance with the charter (which, inter alia, provides for the

23

Examples concerning sports organisations’ autonomy

participation of all recognised NOCs). This is not always easy where certainprovisions of the charter conflict with the public policy of the potential hoststate. This occurred, for example, with the Paris Olympic bid in 2008, as theanti-doping controls in force in France differed from those prescribed by theIOC.

More recently, in 2008, the IOC became involved in a complaint lodgedwith the Supreme Court of British Columbia (Canada) by female ski jumpersfrom various countries who wished to take part in the 2010Winter Olympicsin Vancouver (British Columbia). The athletes alleged sexual discrimination(prohibited by Canadian law), because the IOC only included their disciplinein the Games for men. The IOC thus ran the risk of having its freedom to takeautonomous decisions about the Olympic programme challenged by a localcourt. But this court declared that the IOC was not under its jurisdiction.

Extrajudicial interference in the affairs of international sports organisationsby European public authorities is rare. Mention can be made of two examples.

In 2001 the Fédération Internationale de l’Automobile (FIA) was forced todivide its activities between two legally separate entitles (one dealing withregulatory matters and the other with commercial affairs) in order to preventthe European Commission’s Directorate General for Competition from inter-vening in the sport of motor racing.

Then in 2004 the European Parliament asked the European Commission tomake representations to the IOC to get it to require its sponsors and suppliersto comply with decent labour standards. This led the IOC to initiate an internaldebate on its social responsibility and to take measures vis-à-vis the OCOGsand their licensees.

Cases brought before national and European courtsAt national level numerous sport-related cases have been brought before thecourts of European countries with the aim of challenging certain decisionsby sports organisations and, hence, their jurisdictional autonomy. Generallyspeaking, the national courts have been reluctant to intervene in “sportingregulation”, which they often consider to be part of the autonomous preserveof the national and international federations. Nonetheless, depending on thecountries concerned, a whole corpus of sports case law has emerged, result-ing in a corresponding reduction in national sports organisations’ autonomy.It would be tedious to go over it here, and above all pointless, since all ofthese cases show that sports rules can sometimes be set aside under a nationallegal system.

The IFs and the IOC, in contrast, are themselves to a large extent outside thejurisdiction of the national courts because of their transnational nature. It ismoreover for this reason that many sport-related cases are now systematically

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brought before the EU courts, since Community law applies to the 27 EUmember states and, through various agreements, many other countries inEurope and elsewhere. Mention can nonetheless be made of a few interestingcases in which international sports organisations’ autonomy was (or couldhave been) affected by a national court’s decision.

In 1979 Henry Hsu, a national of Taiwan, sought an injunction from a courtof the Canton of Vaud against the IOC, of which he was a member, for fail-ing to comply with a mandatory rule of the Swiss Civil Code (Article 75)allowing a member to challenge an association’s decisions to which he hadnot officially assented. The IOC is indeed an association under Swiss lawwith its headquarters in Lausanne (Canton of Vaud). Henry Hsu was chal-lenging a decision by the IOC requiring the Taiwanese NOC to change itsname and emblem so as to allow recognition of the NOC of the People’sRepublic of China. In 1980 Henry Hsu withdrew his complaint, therebyavoiding a situation where an IOC decision would have been called intoquestion by a local court. Since 1981 the IOC has enjoyed special status inSwitzerland, recognised by the Swiss Government and reinforced in 2000,but it still has no judicial immunity.

In 1981, when the International Association of Athletics Federations (IAAF)still had its headquarters in London, a UK court ruled that it had incorrectlyinterpreted its statutes by solely authorising athletes from the People’s Republicof China to participate in competitions, excluding those originating fromTaiwan. However, in 1987 the UK High Court of Justice held that the IAAFhad correctly applied its rules to the Swiss middle distance runner SandraGasser, who had failed a doping test. The IAAF considered that these andother cases (Krabbe and Reynolds) of external scrutiny of the way in whichit interpreted its rules interfered with its autonomy to such an extent that, in1989, it moved its headquarters to Monaco. This new location placed itbeyond the reach of the UK courts, but not outside Monegasque jurisdiction.However, it thereby escaped from the European judicial area secured by theBrussels-Lugano system (whereby judgments are applicable throughout thisarea, whatever their country of origin), for Monaco is not a member of theEuropean Union.

In 1995 Bernard Tapie, then Chairman of the Olympique de Marseille (OM)football club, lodged an appeal with a court of the Canton of Bern againsta decision by UEFA barring the OM club from the Champions League fol-lowing a proven case of match-fixing by Mr Tapie, who had manipulatedthe outcome of a French first division game between OM and Valenciennes.The cantonal court of Bern (where UEFA then had its headquarters) provision-ally suspended the European federation’s decision, thereby challenging notonly its decision-making authority in sporting matters but also the lawfulnessof its statutes, which prohibited appeal to a national court. UEFA and FIFAthen threatened the French Football Federation with withdrawal of the 1998

25


World Cup from France. In the end, Bernard Tapie withdrew his appeal andUEFA’s decision became enforceable. In 1995 UEFA moved to the Canton ofVaud, inter alia, to avoid the peculiarities of Bernese law (super-provisionalmeasures).

In 2005 Charleroi Football Club (Belgium) and the G14 (a grouping of the14 – subsequently expanded to 18 – leading European football clubs) tookFIFA to court for non-payment of compensation when players employed bya club were required to play for their country’s national team (Oulmers case).At the same time the G14 lodged a similar complaint against FIFA with theSwiss Competition Commission, since both FIFA and the G14 had theirheadquarters in Switzerland. The two cases were dropped following thedisbanding of the G14 in 2008. If they had been successful they would haveundermined FIFA’s autonomy to decide on the (non-)payment of compensationto players. In the meantime, FIFA and UEFA had devised a solution whichwas apparently acceptable to all concerned.

In 2008 the British sprinter Dwain Chambers challenged the lawfulness ofthe statutes of the British Olympic Association (BOA) before the High Courtof Justice in London on grounds of unreasonable restraint of trade. He hadbeen penalised for using performance-enhancing drugs and had served hissuspension, but the BOA had excluded him from the Beijing Olympics inaccordance with a regulation of 1992 whereby athletes convicted of dopingwere banned for life from the Olympic Games. In the end the High Courtfound against him, although the penalty imposed by the BOA (a life ban fromthe Olympic Games) went far beyond the two-year ban provided for in theWorld Anti-Doping Code. The IOC has now instituted a systematic ban onparticipating in the next Olympic Games for all athletes given a minimumtwo-year suspension for drug use.

At European level no more than 100 sport-related cases have been broughtbefore the European Court of Justice (ECJ) since the 1980s and before theEuropean Court of Human Rights since the 1990s. Latty (2007, p. 833) putstheir number at 76 before the ECJ and seven before the European Court ofHuman Rights. However, these cases are always of considerable importancebecause, in view of Europe’s significant role in world sport, they affect bothEuropean and international sports federations. Here too, it is not possible tolist all the cases, but mention should be made of a few particularly interestingexamples. These cases have moreover been analysed in detail by a numberof authors, such as Husting (1998), Miège (2000) and Latty (2007).

As noted in the introduction, following the verdicts in the cases of Walrave(cycling) in 1974 and Donà (football) in 1976, it was the ECJ’s judgment of1995 concerning the Belgian footballer Bosman that really unleashed a seriesof complaints by sportsmen and women against their organisations, whosedecisions and/or rules were thus challenged in the European courts, resulting

26


in restrictions on their autonomy to determine sporting regulations. The Bosmanjudgment ultimately caused FIFA to change its rules on transfers of players in2001 (Husting, 1998; Cohen, 2007). Similarly, FIFA amended its regulationson football players’ agents following a complaint lodged by Laurent Piau,who contended that the rules previously in force restricted his access to thisprofession.

Conversely, in its judgments concerning complaints by the Belgian judokaDeliège, in 1996, relating to the selection criteria for participation in com-petitions, and the Finnish basketball player Lethonen, in 1999, regardingtransfer deadlines, the ECJ held that other sports regulations were compatiblewith Community law (in particular the freedom of movement of workers andservices). The ECJ also recognised international and national federations’autonomy to adopt selection and transfer regulations. The InternationalBasketball Federation (FIBA) nonetheless decided to relax its rules on transfersfollowing the Lethonen judgment.

In 2001, at a conference on “Governance in sport” organised by the EuropeanOlympic Committees and the FIA (Fédération Internationale de l’Automobile),the European Commissioner for Competition, Mario Monti, declared “theCommission is not, in general, concerned with genuine ‘sporting rules’. Rules,without which a sport could not exist (that is, rules inherent to a sport, ornecessary for its organisation, or for the organisation of competitions) shouldnot, in principle, be subject to the application of EU competition rules. Sportingrules applied in an objective, transparent and non-discriminatory manner donot constitute restrictions of competition” (quoted by Foster, 2005, p. 85).The European Commission henceforth recognised that sports rules did notinfringe Community law provided that they pursued a legitimate aim (inparticular of a sporting and social nature) and were proportional to that aim(Latty, 2007, p. 741).

It was for this reason that the Meca-Medina and Majcen judgment, when itwas issued in 2006, was regarded as a retrograde step by the sports organ-isations, whose decision-making autonomy had been previously confirmedby a number of judgments delivered by the ECJ (see the Introduction). Forthe first time their freedom to determine anti-doping rules was challenged,whereas these rules were now governed by the World Anti-Doping Code,which had been incorporated in the national law of countries having ratifiedUNESCO’s ad hoc convention, signed in 2005, a treaty under internationallaw ratified by very large numbers of European states.

Some sportsmen and women are now prepared to go so far as to chal-lenge sporting regulations before the European Court of Justice or theCouncil of Europe’s European Court of Human Rights. In 2007, for instance,Argentine tennis player Guillermo Cañas, dissatisfied with a decision by theCourt of Arbitration for Sport (CAS) in a case that he had brought against

27


the Association of Tennis Professionals (ATP), appealed to the EuropeanCommission’s Directorate General for Competition not only against theATP decision, but also against the CAS and WADA (the World Anti-DopingAgency). He has said that he will go to the ECJ if necessary. Yet, his caseoccurred in Mexico, the ATP is incorporated under the law of Delaware(United States) and the CAS is based in Switzerland. The same year, theKazakhstani cyclist Andrey Kashechkin took the International Cycling Union(UCI) to court in his Belgian home town to challenge a suspension for dop-ing. After losing his first court case, he stated his intention to take the matteras far as the European Court of Human Rights, since he believed that hishuman rights had been violated. If these complaints were successful, sportsorganisations’ autonomy to determine anti-doping rules would be severelyrestricted. It could even be said that the whole system which the sports move-ment has gradually put in place to preserve its autonomy, as far as possible,through systematic recourse to arbitration by the CAS, would be at risk, atleast in matters of doping, which accounts for about one third of the casesbrought before the CAS.

Intrusions in sports organisations’ autonomyby other sports organisationsThere are few examples of interference with sports organisations’ autonomyby other sports organisations, as a result of the pyramid structure wherebythe clubs are affiliated to the national federations, which are themselvesaffiliated to the international federations for the sport concerned. In addition,as we saw in the first part of this report, the IOC reserves the right to withdrawits recognition of NOCs and IFs which fail to comply with the Olympic Charter,its code of ethics or the World Anti-Doping Code. In the past, the IOC utilisedthis clause to threaten certain IFs whose rules on amateurism were deemedincompatible (this applied to the FIS and the IIHF (International Ice HockeyFederation) during the period after the Second World War). However, todayit is entirely exceptional for a sports organisation to encroach upon thedecision-making autonomy of a subordinate or parallel organisation (unless,of course, a decision is imposed from the outside).

Mention can nonetheless be made of the case of the Fédération Internationalede Volleyball (FIVB), which, in 2002, suspended the Argentine VolleyballFederation following commercial disputes linked to the hosting of the WorldChampionship in Buenos Aires. This suspension prevented the Argentine teamfrom participating in the 2003 Pan-American Games, despite a last-minutesolution proposed by the Pan-American Sports Organization (PASO). TheFIVB then took this last body before the IOC Ethics Commission for havingattempted to breach its decision. The commission reiterated the principle thatthe IFs were autonomous, but reprehended the FIVB for having violated cer-tain fundamental principles of the Olympic Charter, in particular the right to

28


sport conferred on athletes and the right to practise a sport without any kindof discrimination. This case triggered other complaints which led the FIVBpresident to resign his IOC membership (he was a member of the IOC in hiscapacity as president of a leading IF). In 2009, a new FIVB president hadthe rule on commission on contracts which had been deemed by the IOC tobe incompatible with the Olympic Charter, and which had given rise to thecomplaints against his predecessor, removed from the federation’s statutes.

Again in 2002, the IOC barred Latvian bobsledder Sandis Prusis from com-peting in the Salt Lake City Winter Olympics, although he had previouslybeen authorised to participate in them by his international federation (theFIBT) despite an earlier suspension for doping. Prusis lodged an appeal withthe CAS, which decided in his favour on the ground that, by virtue of the IFs’autonomy, the IOC was not empowered to review their decisions unless itproved that they had violated the Olympic Charter. The CAS nonethelessacknowledged that the IOC had been right to exclude from the same gamesa female skier from Grenada, who had not been selected by her NOC, averdict which fully endorsed the NOC’s autonomy to select its own Olympicteam (Rule 28 of the Olympic Charter).

A more recent case worth mentioning is that of the Polish Football Federation,whose officials were suspended by the Polish Government in October 2008following a ruling by the arbitration court of the national Olympic committeethat the federation had not dealt properly with cases of corruption. This con-stituted interference in FIFA’s rules and Poland’s Olympic rules with the back-ing of national law. FIFA threatened to suspend the Polish Football Federationfrom all international competitions, and UEFA threatened to withdraw its rightto co-host Euro 2012. Ultimately, the federation and the Polish Governmentsigned an agreement to restore normality rapidly on the basis of a jointlyagreed road map.

In conclusion to this second part of the report it can be said that, despite theacknowledgments of autonomy by both sports organisations and the publicauthorities noted in the first part, there have been many cases of interferencein the rules relating to the organisation of competitions or in the operation oforganisations’ statutes, not just by governments but also by sports organisa-tions and athletes themselves, who no longer think twice about appealing todomestic courts or to national or international courts of arbitration. These allprovide examples of a real decline in sports autonomy, albeit often justifiedby sporting regulations which are sometimes disproportionate to the sportingand sociocultural objectives pursued by sports organisations.

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3. Analysis of replies to the EPASquestionnaire on autonomy in sport

Following an initial survey in 2008, the Executive Secretariat of the EnlargedPartial Agreement on Sport (EPAS) in April 2009 sent a questionnaire onautonomy in sport (see Appendix 1) to the sports authorities, both govern-mental (ministries, offices of state secretaries) and non-governmental (sportsconfederations or national Olympic committees), of Council of Europe mem-ber states, including the 31 states parties at the time to the EPAS.5

The questionnaire covered five dimensions: 1. a conceptual study, 2. a polit-ical study, 3. a legal study, 4. a financial study and 5. a psycho-sociologicalstudy.

1. The conceptual study aimed to determine what those in charge of sport atthe governmental and non-governmental levels meant by “autonomy”.

2. The political study set out to establish whether the concept of “sportsautonomy” had been explicitly mentioned in general policy statements,speeches and other documents by ministers or state secretaries responsiblefor sport or by heads of national sports confederations over the previous12 months and, if so, in what terms.

3. The legal study focused on inclusion of the concept of “autonomy of thesports movement” or “sports autonomy” in national legislative and regulatoryinstruments and in other relevant documents.

4. The financial study aimed to determine whether “financial autonomy”existed within European sports movements and, if so, what it entailed.

5. The purpose of the psycho-sociological study was to ask sports authoritiesto say whether they regarded their national sports movement as “autonomous”at the date of the survey and, if so, to gauge this autonomy on a quantitativescale. Another question raised was the areas in which further progress couldbe made towards greater autonomy in future.

The replies received to this questionnaire are summarised below, first fromthe standpoint of public sports authorities, then from that of non-governmentalsports organisations. It can also be seen from the replies that this is the firstsurvey on this theme in which the respondents had participated.

5. As at 1 June 2009: Albania, Andorra, Armenia, Azerbaijan, Belarus, Bosnia and Herzegovina,Bulgaria, Croatia, Cyprus, Denmark, Estonia, Finland, France, Greece, Hungary, Iceland, Latvia,Liechtenstein, Luxembourg, Monaco, the Netherlands, Norway, Poland, Portugal, San Marino,Serbia, Slovenia, Spain, Sweden, Switzerland, and “the former Yugoslav Republic of Macedonia”.Observers: Czech Republic and Russia.

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The public sports authorities’ point of view

As at 1 June 2009 replies had been received from the public sports authoritiesof 25 of the 31 EPAS member states (Andorra, Azerbaijan, Belarus, Bulgaria,Croatia, Cyprus, Denmark, Estonia, Finland, France, Greece, Hungary,Iceland, Latvia, Luxembourg, Monaco, the Netherlands, Norway, Poland,San Marino, Serbia, Slovenia, Spain, Sweden and Switzerland),6 as well asfrom five countries not at the time members of the EPAS (Belgium, the CzechRepublic, Romania, Russia and Ukraine). This represented a response rateof over 75% from EPAS member states. A total of 30 replies were received(the total number of Council of Europe member states being 47). The resultscan therefore be regarded as meaningful. The results are analysed for eachdimension studied.

Conceptual dimension

The most frequently cited synonyms or terms associated with autonomywere: independence (16 times); sports organisation or movement (14);democracy (12); freedom (10); and self-governance (8). Other key termsof interest less frequently cited included: apolitical nature, decentralisation,non-interventionism, specificity of sport and subsidiarity.

Few public sports authorities proposed a definition of the concept. Mentioncan be made of the following: “The right of sports organisations to decideindependently of politics about the issues of their existence, activity andfuture” (Croatia) or Poland’s reference to protection of the sports movementagainst government interference in a climate of mutual respect. Serbia pointedout that sports organisations had to be empowered to deal effectively (andautonomously) with their rules.

Political dimension

From a political standpoint it can be seen that, over the previous 12 months,government statements or official documents made reference to sports auton-omy in almost two thirds of the respondent countries, although no link can beestablished between the government’s political complexion (right, centre, left)and the existence of such statements. This is therefore unquestionably a topicalconcern in Europe, irrespective of the government’s leanings. Slovenia alsosaid that this topic was a key focus of discussions with the sports movementduring the Slovenian EU presidency. It goes without saying that, as underlinedby respondents, the political situation in the broad sense is far more favour-able to sports autonomy today than it was before the Berlin Wall came down.

6. EPAS member states as at 1 June 2009 which did not reply: Albania, Armenia, Bosnia andHerzegovina, Liechtenstein, “the former Yugoslav Republic of Macedonia” and Portugal.

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Analysis of replies to the EPAS questionnaire on autonomy in sport

Legal dimension

From the legal angle it can be seen that, although half of the respondentcountries’ constitutions make reference to sport, sports autonomy is only rarelymentioned (in two out of 15 cases: Denmark and Estonia). However, if acountry has a law relating to sport, this refers to the autonomy of the sportsmovement in some 50% of cases and very often includes a legal definitionof such autonomy. Figure 1 sums up the replies received.

Despite their diverging replies, almost all of the respondents (there were fiveexceptions: Azerbaijan, Croatia, Cyprus, Greece and Ukraine) consideredtheir country’s sports movement to be autonomous from a legal standpoint.The respondent from Cyprus indicated that the country’s sports law expresslyrecognised the Olympic Charter (which requires that sports organisationsshould be autonomous).

16

3

28

17 9

26

15

28

3

14 8

5

0%10%20%30%40%50%60%70%80%90%

100%

3.1 Does yourcountry's consti-tution include a

specific referenceto sport?

3.2 Does yourcountry's consti-tution include a

specific referenceto sportsautonomy?

3.3 Does yourcountry havea law specific

to sport?

3.4 Does yourcountry's specific

law on sportinclude a

reference to theautonomy of thesports movement

or to sportsautonomy?

3.5 If youanswered yes toquestion 3.4,

does the specificlaw on sport givea legal definition/reference for theautonomy of thesports movement

or sportsautonomy?

3.9 Do youconsider yourcountry's sportsmovement to beautonomous?

NoYes

Figure 1 – Replies to the questions on the legal dimension of sports autonomy

Financial dimension

From a financial standpoint all the respondent states financially supportedtheir sports movements, which, in the majority of cases, could not exist orwould be far smaller without this support (exceptions being Finland andIceland). Nonetheless, according to the respondent public sports authoritiesthis assistance did not undermine the financial autonomy of the sports move-ment in three quarters of the countries concerned. However, the uses madeof these funds were subject to complex or less complex forms of governmentscrutiny in all but five countries. France stated that the situation varied con-siderably from one sport to another, citing the examples of football andtennis, which were more financially independent, and the modern pentathlon,which was less so. Latvia indicated that financial autonomy was subject tocertain criteria and contractual requirements where public funds were involved,but that there must be no supervision of the management of funds originating

32


from sponsors or patrons. Figure 2 summarises the responses received (somecountries did not reply to all of the questions).

Norway described an approach which could serve to define the financialautonomy of sport in Europe: the purpose of public funding of sport was toreinforce the framework for the performance of sport and physical activity inNorway. The sports movement was the largest segment of Norway’s voluntarysector. The public authorities considered it important to allow the sports move-ment to develop on its own terms. Public funding of sport was founded onsport’s inherent social value and must foster, rather than be substituted for,voluntary work. From this standpoint, public funding of organised sport tookthe form of basic grants, which came with a few general guidelines on howthe funds were to be used. Within these guidelines the sports movement wasfree to determine its own objectives and priority activities. This freedomfacilitated the financial autonomy of the sports movement in Norway. TheNetherlands cited an ideal objective: the country’s sports organisations wereself-financing, while government funding was intended to be used to relievetensions.

30

3

2117

25

69

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

4.4 Does yourcountry's sportsmovement receivefinancial supportfrom government?

4.5 Could yourcountry's sport

movement continueto exist without this

support?

4.10 Does yourgovernment controlthe management ofthe funds it makesavailable for the

sports movement?

4.11 Does yourcountry's sportsmovement enjoy

financial autonomy?

NoYes

Figure 2 – Replies to the questions on the financial dimension of sports autonomy

Psycho-sociological dimension

From this standpoint, three quarters of respondents considered their country’ssports movement to be autonomous, while the remainder regarded it as onlypartly autonomous. The only public sports authorities which took the view thattheir sports movements were not at all autonomous were those of Azerbaijan,Greece and Ukraine. Russia said that its sport was too autonomous!

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On a scale from 0 (no autonomy) to 10 (complete autonomy), the respondentcountries gave a mark of 9 for political and legal autonomy, whereas finan-cial autonomy scored 6.5 and overall autonomy 8.2.

Greece recommended adopting a European policy for sports autonomy.Croatia proposed more tax relief for sport sponsorship. Slovenia stated that,as a social activity to which “general social rules” and regulations applied,sport could not be completely autonomous, but must function according tothe operating standards and principles of society as a whole. France pointedout that, to give sport more autonomy, it would be necessary to look closelyat what the stakeholders understood by the concept and initiate a politicaldebate on the possibilities for improving the situation: “It would then doubtlessbecome feasible to negotiate on a case-by-case basis the aspects and areaswhere autonomy could/should progress.”

The sports organisations’ point of viewFew replies were received from non-governmental sports organisations,although the 2008 questionnaire, which had coincided with preparationsfor the Beijing Summer Olympics, had been sent out again in 2009. Onlysix international sports federations (athletics, basketball, boxing, football,gymnastics and ice hockey) − out of a potential total of 35 Olympic IFs − andone European federation (football) responded. One IF (volleyball) expresslyrefused to reply, since it disagreed with the aim of the questionnaire. Onlyeight national Olympic committees (Albania, Croatia, Denmark, Luxembourg,Serbia, Slovenia, Spain and “the former Yugoslav Republic of Macedonia”)replied. Seven sports confederations separate from their country’s NOCresponded (the Czech Republic, Denmark, Finland, Hungary, Slovakia,Sweden and the United Kingdom), as did a small assortment of nationalfederations, which had apparently obtained the questionnaire by indirectmeans, since it had been sent only to international federations (via the IOCand the associations of international federations for the Winter and SummerOlympics (the ASOIF and the AIOWF)), European federations, NOCs andnational sports confederations (via the ENGSO).

In view of the low response rate (29 replies in all) and the disparity of therespondent sports organisations, no statistical processing giving a reliableoverview of the situation was possible. The most interesting qualitative obser-vations are set out below under the five headings of the questionnaire.

Conceptual dimension

At the conceptual level the synonyms or keywords most often cited by thenon-governmental sports organisations were independence and freedomfrom government and national or supranational political authorities. TheConfederation of Slovak Sport Federations pointed out that autonomy was

34


a hypothetical ideal which was very difficult to achieve and that the presentsituation was far from corresponding to this ideal. The Luxembourg NOCbelieved that sports autonomy was in danger. Albania’s NOC emphasised theneed for free elections, democracy and the absence of political interference.The IAAF, UEFA and FIFA wanted more consultation with the public authorities.

The United Kingdom Central Council for Physical Recreation (CCPR) proposeda definition: “The autonomy of sport is its right to set its own rules and regu-lations and to be independent from political interference in the governanceof sport for the benefit of sport and its participants (but within the confines ofthe law)”. The Swedish confederation summed it up in a nutshell: “Setting itsown objectives”.

Political dimension

Half of the respondents stated that the issue of sports autonomy had beenaddressed in political statements made by their organisations’ heads overthe previous 12 months. Several mentioned meetings on this subject hostedby the IOC in Lausanne or by NOCs. A number expressed disappointmentthat the European Commission’s White Paper on Sport had not properlyaddressed this issue. These brief elements confirm that autonomy is a topicalconcern.

Legal dimension

The great majority of respondents considered that the sports movement intheir country or in Europe was autonomous from a legal standpoint (theexceptions being the IIHF, the United Kingdom’s CCPR and the NOCs in theBalkans). In general, they considered that including a precise definition ofautonomy in national or European legislation on sport would be useful. Suchlegislation would usefully supplement references to the principle of autonomymade in laws relating to sport in half of the respondent countries. It must,however, not be overlooked that several European countries have no law onsport (Germany, the Netherlands, the United Kingdom and Sweden).

Financial dimension

All of the respondent sports organisations recognised that their governmentwas the dominant provider of financial support to sport and, in most cases,issued guidelines on the use to be made of funds and monitored that use(Denmark and “the former Yugoslav Republic of Macedonia” appeared tobe the exceptions). Among the respondent confederations, only those ofSweden and the United Kingdom considered that the sports movement couldsurvive without public funding. This is also indirectly apparent from the factthat, to a large extent, the chief financial sources cited, apart from households,were municipal or national grants or lottery money, the last-named being

35


crucial to sport in many European countries, although it was under politicaland technological threat. Several organisations nonetheless underlined theneed to raise funds in a more autonomous manner, in particular throughcommercial or television rights. The British Swimming Federation complainedthat it had to surrender elements of its autonomy in order to obtain govern-ment funds.

In most countries, some sectors of sport (particularly Olympic elite sport)received greater support than others (particularly sport for all and non-Olympic sports). Strangely, no organisation (not least the IFs and the NOCs)mentioned the financial autonomy engendered by the significant fundsreceived from the IOC for participation in the Olympic Games.

Psycho-sociological dimension

Only six respondent sports organisations considered that their country’s sportsmovement was not autonomous (the Spanish NOC, four NOCs from Balkancountries and the Estonian Boxing Federation) and called for their law relat-ing to sport to be improved in this respect. The others were divided betweencomplete autonomy and partial autonomy, particularly in financial matters.Some organisations pointed out that financial autonomy was not an aim,especially with regard to the construction and operation of sports facilities,but solely autonomy in terms of governance.

UEFA stated that strong financial autonomy, as was generally the case infootball, could result in excessive commercialisation, causing individuals orlegal entities to invest in sports organisations (in particular football clubs).This might undermine the autonomy of the organisations concerned, whilecurtailing that of the governing sports organisations, since the interests pursuedwere not the same (profit-making versus the development of sport and socialaims). It could even lead to the creation of private leagues, which would exertstrong pressures on the traditional sports organisations or might even attemptto change the rules of the game (particularly with regard to the use of technol-ogy). UEFA, FIFA and the IIHF considered that the problem was not so muchfinancial autonomy as legal autonomy, which these organisations rated atless than 5 on a scale of 0 to 10.

The CCPR considered it important that sports autonomy should not be furtherundermined by the European wish to harmonise sports laws and regulationsor by non-essential transfers of power to European governmental organisations;in other words, the principle of subsidiarity should also be respected in sport.

In very general terms, it can be seen from the responses to this questionnaire,however imperfect it may be, that the vast majority of sports organisationsand public sports authorities in the countries of Europe do not perceiveautonomy as a real problem, apart, to some extent, from the financial angle.

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Only the respondent international federations complained of a lack of legalautonomy, principally in relation to Community law.

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4. Restrictions on sportsorganisations’ autonomy

The European examples concerning sports organisations’ autonomy (Part 2)and the replies to the EPAS questionnaire (Part 3) bring to light a number ofrestrictions on sports autonomy resulting from legal provisions (national orinternational) and the entire body of sporting rules and regulations (lex spor-tiva). These two aspects are discussed in turn below, along with the solutionsthat can be envisaged so as to optimise sports organisations’ autonomy. Theserestrictions are represented by the arrows in Figure 3, which symboliseorganisations’ (partial) dependence on others, as explained below.

State law mainly covers a whole country, but in federal states it may have aregional dimension (an example being cantonal law in Switzerland). In astate governed by the rule of law, as are all European states, state law isnaturally binding on all that state’s sports organisations, such as its NOC,national sports confederations (NSCs), national federations (NFs), regionalfederations, clubs, and so on. Local and regional government authorities,such as municipalities or regions, can also issue regulations which apply tothe organisations located within their boundaries. An example is municipalregulation of local sports clubs.

The legal situation varies considerably from one European country to the nextsince some countries have no sports law, while others’ sports laws involvegreater or lesser restrictions on autonomy. Where no sports law exists, it isthe law on freedom of association or another law that applies. Some countries(such as France) even impose model statutes on sports organisations that wishto be declared to be serving the public interest.

Restrictions resulting from state lawAs pointed out by Latty (2007, p. 449), irrespective of the individual caseunder consideration, the courts’ attitudes to self-regulation by sports organisa-tions vary in line with each country’s legal tradition. Those with Romano-Germanic legal systems are traditionally more interventionist than those withcommon law systems. To this must be added the fact that things are organisedvery differently from one country to another, with greater or lesser degreesof centralisation or decentralisation at the level of the public authorities andgreater or lesser consolidation of sports organisations (see Chaker, 1999,p. 52, for statistics relating to these characteristics).

As we saw in the third part of this work, the financial autonomy of sportsorganisations in European countries is sometimes restricted by guidelines on

38


the use of public funds. These organisations could better safeguard theirautonomy by concluding target agreements or service contracts with thepublic authorities of the tier of government with which they deal. These pub-lic management instruments were devised as from the 1990s for other fieldsof public action in connection with the reforms aimed at modernising publicsector management. However, they lend themselves to use in sport and arealready being implemented, for example, in the case of national federationsor local clubs in Germany, France and Switzerland. These agreements orcontracts determine the sports organisation’s target objectives over a numberof years (usually four) and the services it is to supply in exchange for cashgrants and subsidies in kind provided by a public authority.

Eurosport

State, namely local,national andinternational law

Lex sportiva =

rulesClub

NF

IF

LocalGov.

NationGov.

CAS

HQState

UN,UNESCO

Council of Europe,EU… via

internationaleconventions

NOCNSC

IOCEurosportFed.

national andinternational law

=all sportingClub

NF

IF

Localgov.

Nationgov.

WADA CAS

HQState

UN,UNESCO

Council of Europe,EU ... via

internationalconventions

OCOGNOCNSC

IOC

Figure 3 – Principal restrictions on sports organisations’ autonomy

International or European sports organisations (such as IFs or European federa-tions) usually derive some of their income from broadcasting or commercialrights linked to the events they run, and the Olympic IFs receive significantsums from the IOC linked to the organisation of the Olympic Games. Thesebodies therefore have a good deal of financial autonomy. Legally speaking,these transnational bodies are scarcely affected by the various states’ lawstaken individually, the exception being the law of their headquarters state,as we saw in the second part of the report (with the cases of Henry Hsu,concerning the IOC, and Olympique de Marseille, concerning UEFA).

Since about 40 of these organisations are located in the Swiss Confederation,Swiss law is of particular importance from this standpoint, but Switzerland’s

39

Restrictions on sports organisations’ autonomy

law governing associations is generally deemed to entail few restrictions (itconsists of only 20 articles of the Swiss Civil Code: Articles 60 to 79).Furthermore, as pointed out by Latty (2007, p. 449), the Swiss courts have,by gradually drawing a distinction between legal rules and the rules of thegame, granted a form of jurisdictional immunity to the rules they regard aspurely sport-related. This is far from true of other European courts. Accordingto Burns (2003), it would be in the interest of European sports federations tobase themselves in Belgium, in order to benefit from better recognition inEurope (thanks to a particular feature of Belgian law) and to bring morepressure to bear on the European authorities.

Most European states, including Switzerland and Belgium, are members ofthe UN, UNESCO and the Council of Europe and have ratified the inter-national conventions issued by these intergovernmental organisations, whichthey have thus integrated into their national law. The conventions that havea significant role in sporting matters (and can sometimes restrict sportsorganisations’ autonomy) are:– the Convention for the Protection of Human Rights and Fundamental

Freedoms (Council of Europe, 1950);– the European Convention on Spectator Violence and Misbehaviour at

Sports Events and in particular at Football Matches (Council of Europe,1985);

– the Anti-Doping Convention (Council of Europe, 1989);– the International Convention against Doping in Sport (UNESCO, 2005).

The European Convention on Human Rights dates from the immediate post-war period but has, since the 1980s, been utilised in connection with dopingin sport (see the Kashechkin case referred to above). It has been suggestedthat the IOC should incorporate the concept of human rights into the OlympicCharter (Marguénaud, 2008).

In addition to these conventions which have force of law in the (numerous)European countries that have ratified them, intergovernmental organisationshave adopted many resolutions, recommendations and declarations concern-ing certain aspects of sport, which are, to differing degrees, binding on theirmember states, and hence on the sports organisations based there. A pastexample is certain UN resolutions instituting embargoes against a number ofcountries (South Africa, Rhodesia (present-day Zimbabwe), Yugoslavia).

The World Anti-Doping Agency (WADA) has special status. It is a foundationunder Swiss private law, but UNESCO’s International Convention againstDoping in Sport makes it responsible for the fight against doping and forformulating a World Anti-Doping Code. Its structure and its equal funding bythe Olympic Movement and public authorities moreover reflect its simultane-ously private and public service nature. Its decisions are binding on all

40


organisations that have signed the world code, not least the IOC and the IFs.As provided in the code, an appeal against a WADA decision lies to theCourt of Arbitration for Sport (CAS), a private court set up by the OlympicMovement to avoid, as far as possible, national courts’ intervention in sport(see below). It can be noted in passing that the World Anti-Doping Code wasdrafted to prevent incompatibilities with states’ public policy or breaches ofhuman rights, according to Kaufmann-Kohler et al. (2003).

Lastly, Community law, that is the law deriving from the treaties and conven-tions ratified by European Union member states, plays a very specific rolein sporting matters, since it is directly binding on all the EU member states(of which there are currently 27) and partly binding on all states that havesigned bilateral co-operation or association agreements with the EU (numer-ous Council of Europe member states, including Switzerland, and manynon-European countries). According to the Treaty of Lisbon, and in particularArticle 165 thereof, sport is now an EU competence. Nevertheless, sportsorganisations’ autonomy has been encroached upon, above all since the1990s, by decisions taken by the European Commission and the EU courts inmatters where sport could be regarded as an economic activity and thereforesubject, inter alia, to the rules on freedom of movement and of competitionwhich are part of Community law.

In this connection, European and international sports organisations haveunderlined sport’s specificity in the hope of seeing it excluded from the scopeof Community law (for instance via an exemption). This possibility, whichlooked like a dead end following the publication of the European Commission’sWhite Paper on Sport in 2007, could now be opened up again followingthe initiative taken by the governments of France and the Netherlands in2008. In the Independent European Sport Review (2006), international sportsorganisations and the UEFA proposed to the European Union that it adopt anumber of recommendations, instructions, guidelines, voluntary agreementsand other soft law instruments that could better preserve sports organisations’autonomy and afford them increased legal certainty with regard to casesbrought against them before the European Commission and courts.

Michel Platini, President of UEFA, summed up the position of European sportsorganisations in a speech to ministers of foreign affairs made in Brest in July2008: “The European sports movement does not wish to be above the law.On the contrary, we need laws in order to protect the true values of sport.However, these laws need to be written and interpreted in a way that recog-nises the specificity of sport and the autonomy of its institutions. Sport is notjust an economic activity like any other. We need a legal framework thatprotects the things that form the essence and beauty of sport: its educational,social and civic values. At the moment, sport is experiencing numerous regret-table developments, thanks in particular to the blind application of European

41


law to sport. European competition law cannot be used to govern automatic-ally and exclusively the world of sport.”

Thus UEFA wishes the UK Government to introduce a law giving greaterpower to its national federation (the Football Association, known as the FA)over the management of the main English football league (Premier League)and the supervision of referees. This was made clear in 2009 in the evidencegiven to the United Kingdom’s All-Party Parliamentary Football Group.

With similar aims in mind, six European team sport federations (basketball,football, handball, ice hockey, rugby and volleyball) listed the fields in whichsports autonomy could be improved, through negotiation with the EuropeanCommission, in a document of July 2008 entitled “Safeguarding the heritageand future of team sport in Europe”, which was submitted to the French EUpresidency. These federations primarily propose that the European Councilshould request the Commission to implement “the most effective means torecognise the specificity of sport within a clear legal framework” in accord-ance with the principles set out in the paper concerning training of players,transfers, agents and good governance of clubs and federations. They callfor the establishment of “an appropriate European licensing framework andfinancial management body, to be administered by the relevant Europeansports federations.”

It can therefore be seen that the complete autonomy often aspired to bytransnational sports organisations can in fact only be an autonomy exercisedunder the scrutiny of their headquarters state and the states where they oper-ate. Nonetheless the national courts rarely interfere in the internal functioningof these bodies. When asked to decide cases by complainants, they simplyverify that the organisations are applying and complying with the sports rulesthat they have set for themselves. On the other hand, since the 1990s, trans-national sports organisations’ autonomy has been restricted at European levelvia the conventions and treaties ratified by European Union or Council ofEurope member states.

Restrictions resulting from lex sportiva

On account of the pyramid system which gradually became the norm in sportin the course of the 20th century, the autonomy of lower-ranking sportsorganisations is restricted by the higher-ranking ones. For instance, a club isbound by the rules of its national federation (NF), which is itself bound bythose of the international federation (IF) for its sport and of the nationalOlympic committee (NOC) for its country. These last two bodies may berecognised by the International Olympic Committee (IOC) if they comply withthe Olympic Charter and related instruments such as the Olympic Code of

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Ethics7 and the World Anti-Doping Code, but this recognition can be with-drawn. However, these restrictions on their autonomy are freely accepted bythe organisations of the Olympic Movement, which is in point of fact definedas all the legal and natural persons who agree to be guided by the OlympicCharter (see Rule 1 of the charter).

To avoid the need to refer disputes between sports organisations and/orathletes to the national courts (deemed to be slow and costly), the OlympicMovement established the Court of Arbitration for Sport (CAS) in 1983. Mostsports organisations, and particularly the IOC and WADA, now recognisethe CAS as the final court of appeal for their disciplinary proceedings. Throughthe decisions it has taken over the years, the CAS has helped to bring sport-ing rules into line with the basic principles of law (equal treatment, the rightto a hearing, proportionality of penalties, and so on). In other words, sportsorganisations have voluntarily adapted their rules to avoid systematic findingsagainst them by the CAS or by national courts. The CAS is based in Lausanneand is governed by the principles laid down in Chapter 12 of the Swissfederal law on private international law. Its decisions cannot be appealedagainst, except in the event of alleged violations of its own procedural rules,in which case an appeal lies to the Swiss federal tribunal (the highest Swisscourt), a remedy that has been exercised only very infrequently. The CAS isaccordingly de facto the Supreme Court administering lex sportiva, in otherwords, the whole body of rules and regulations issued by sports organisa-tions. It has unquestionably strengthened the autonomy of international sportsorganisations, despite the gradual adaptation of their rules to comply withthe general principles of law.

Lex sportiva is a huge body of regulations of all kinds issued by tens of thou-sands of non-governmental organisations (NGOs), covering over 100 sportsand applicable at local, national or transnational levels. They are often badlydrafted, leaving the door open to challenges which could have been avoided.The Olympic Charter, drawn up by the IOC, is merely the tip of an enormousiceberg, which is constantly changing and becoming ever-more complex.Three kinds of “sporting rules” can be identified in this regulatory jungle:– rules of the game;– competition rules;– club rules.

Rules of the game are the technical rules according to which a given sport isplayed. Examples are: in football a penalty has to be taken from a spot9 metres from the opposing team’s goal; in the 110-metre hurdles race, thehurdles must be 1.06 metres high and set at a distance of 9.15 metres

7. Several IFs have adopted their own codes of ethics so as to avoid being over-committed tothe IOC’s. They include the IFs for baseball (IBAF), cycling (UCI), football (FIFA), gymnastics(FIG), wrestling (FILA), skating (ISU) and archery (FITA).

43


between each hurdle; an amateur boxing match lasts three rounds. Theserules constituted the very basis for the establishment of the European andinternational federations, one of whose first objectives was to harmonise therules followed in the different countries. They have been adapted to develop-ments in the various sports and to the needs of television (examples beingthe introduction of the tie-break in tennis, the golden goal rule in football,and the libero in volleyball). These rules have only very rarely been challengedin national courts, and in such cases the courts have generally been unwillingto concern themselves with them or with their (sometimes very complex)interpretation, which is a matter for judges, referees and umpires on the fieldof play or for appeals boards once a competition is over. It is inconceivablethat a national court should make an offside decision! Even the CAS, beforewhich a number of cases have been brought (especially in respect of the1996 Atlanta and 2004 Athens Games), refrained from overturning decisionsgiven by Olympic judges, referees and umpires.8 Nor do governments inter-vene, unless the rules are in breach of public policy, which would be thecase, for example, if a boxing federation were to adopt a rule stipulatingthat each bout should continue until the death of one of the participants.

What can be termed club rules, or statutes, are those adopted by each non-governmental sports organisation operating on a non-profit-making basis toregulate its own functioning, such as the rules determining who can becomea member; how its president or chair is appointed; when it holds generalmeetings, etc. These rules must be in accordance with the law of the state inwhich the organisation has its headquarters, and often with that country’slegislation on non-profit-making associations.9 In Switzerland, for example,an association must have a management body, hold regular general meet-ings, be registered in the commercial register if it carries on commercialactivities, and have its accounts audited by an outside body if it has morethan 50 employees. However, under the general legal framework applicableto all legal persons, sports organisations have considerable autonomy. Heretoo, this autonomy is limited solely by general legal principles, such as theprinciple that members must not be forbidden from appealing to the nationalcourts, a prohibition which was included in too many sports organisations’statutes for many years, and still is in some cases (see the oath sworn by IOCmembers under Rule 16 of the Olympic Charter).

What may be termed competition rules are all the regulations governingcompetitions organised for a given sport over a given period. For example,

8. The New York courts, however, intervene in the Americas Cup rules, since they were originallyset out in a deed of gift filed with the Supreme Court of the State of New York.9. Or other laws governing legal entities: for instance, the international federations for sailing(ISAF), water-skiing (IWSF) and squash (WSF) are companies limited by guarantee under UKlaw; the International Tennis Federation (ITF) is a “company limited by shares” registered in theBahamas (Latty, 2007, p. 432).

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the World Alpine Skiing Championship takes place every two years in alocation chosen by the International Ski Federation; in Olympic footballonly three players over 23 years of age may be included in each squad;gymnasts participating in the European championship must be over the ageof 15. Competition rules can be divided into those directly concerning theathletes (age, nationality, gender, conduct, use of prohibited substances, andso on) and those concerning the organisation of the competition proper (date,venue, equipment, logistics, sponsorship, broadcasting, betting, and so on).Historically speaking, competition rules have been laid down over time bythe sports organisations with a view to running events in which participantsat all levels can compete and, at the same time, creating a source of revenuefor the organisers. They constitute a heritage for these organisations and forsport in general, although they can be strongly influenced by commercialconsiderations (for example, as regards the frequency of major competitions,broadcasting times or the possibility of betting on the outcome).

It is these competition rules that have been most frequently challenged beforethe national courts and the CAS (particularly in doping matters), in caseswhere much is at stake in the competition and, above all, where the rulesaffect the participating athletes, who can be regarded as sports workers. Itcan therefore be said that sports organisations’ autonomy to decide theserules is currently contingent on the nature of the events they govern: the moreprofessional and commercial the event, the greater the risk that the rules willbe challenged. Much depends as well on the legitimacy of these rules inrespect of the holding of competitions or the achievement of sporting object-ives. Weatherill (2007) speaks in this context of the “conditional autonomy”of sports federations in the event of a clash between Community law and lexsportiva. He interprets the Meca-Medina judgment of the Court of Justice ofthe European Communities (see introduction) as recognition by that court thatthe rules of sport may conflict with European treaties in so far as this is justi-fied by legitimate sporting concerns based on experience.

The European team sport federations (which often have a very large profes-sional branch) listed 16 categories of (competition) rules which they wouldlike the European Union to work with to adopt guidelines geared to preserv-ing their autonomy (ETSF, 2008). These are the rules on: the structure ofchampionships and timetables; the national character of championships; themovement of players between teams; attendance at sports events; the releaseof players to participate in national teams; doping and other disciplinarymatters; club licensing systems; ownership of clubs in the same competition;the activities of agents; local training of players; selling of commercial rights;clubs’ financial stability; sporting and financial solidarity; arbitration as adispute resolution mechanism; intellectual property; and sport’s integrity inrelation to betting. These European federations propose to negotiate oncertain areas with the European Commission as a matter of priority.

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The diagram in Figure 4 shows all the rules which to some extent overlap forthe same sport and which, it should not be forgotten, exist for each organisedsport and sporting discipline, since rules are an inseparable part of the con-cept of sport. The Olympic Charter contains the statutes of the IOC as a club,the rules on organisation of the Olympic Games (a prestigious competitionif ever there was one) and the rules on the functioning of the OlympicMovement, as well as some very general rules of sport (fair play, respect,non-discrimination, etc.).

R ègles établies par ONG SPORTIVES

R ègles du jeud’un sport particulier

R ègles de tournoid’un sport particulier

R ègles de clubd’une ONG sportive

Charte olympique

Rules of the gamefor a given sport

Club rulesof a sports NGO

Olympic Charter

Rules established by sports NGOs

Competition rulesfor a given sport

Figure 4 – The three categories of sports rules

It would be highly desirable to have a complete, up-to-date collection of thesesports rules at European level. At its headquarters in Lausanne the CAS keepsa library of the regulations issued by those sports organisations that recogniseit. An electronic database would be a more effective solution and wouldfacilitate access. A project to establish a database could be set up withEuropean funding.

In sum, it can be seen that sports organisations’ autonomy is restricted by thelaw of the countries in which they operate, above all as regards competitionrules. The traditional dichotomy between the rules of the game and the legalrules, which long prevailed in case law (especially following the Kummerdecision of 1973), is no longer appropriate. It is necessary to specify whichcategories of rules of the game are at issue, rather than talking about their“sporting nature”, which is strictly speaking impossible to decide. Furthermore,autonomy to set rules of sport is conditional on the legitimacy of their sportingobjective and on their proportionality vis-à-vis the situations encountered.

Horizontal versus vertical autonomyFollowing this study of the restrictions on overall sports autonomy, whetherrecognised by law or noted in practice, it is also helpful to draw a distinctionbetween two forms of autonomy of sports organisations: horizontal andvertical. Figure 5 shows the principal sporting bodies (public authorities andsports authorities) at the different levels of the system of governance. Itfacilitates an understanding of these two types of autonomy.

Horizontal autonomy is that enjoyed at a given level (local, regional, national,European or international) by a sports organisation in relation to its corre-sponding public authority of the same level, for example a club in relation

46


to “its” municipal sports department, a national sports federation in relationto “its” ministry of sport, a European federation in relation to the EuropeanCommission or the Executive Secretariat of EPAS, the last-named bodiesreporting to the sports ministers of, respectively, European Union and Councilof Europe member states. There is also a Conference of Ministers and SeniorOfficials Responsible for Physical Education and Sport (MINEPS) withinUNESCO.

Service municipaldes sports

Clubs d’unsport particulier

Office régionaldes sports

Comité olympiqueR égional*

Confédérationrégionale sports *

Clubsrégionaux

Ministère / SEdu sport CNO Confédération

nationale sports* FN

APES+ ConférenceMinistres sport

COE ENGSO Fédérationseuropéennes

MINEPS CIOACNO FI

Public authorities Sports authorities

Internation

al

National

Local

* Only in certain countries

Service municipaldes sports

Clubs d’unsport particulier

Office régionaldes sports

Comité olympiqueR égional*

Confédérationrégionale sports *

ClubsrégionauxRegionalclubs

Ministère / SEdu sport CNO Confédération

nationale sports* FNNOC NF

APES+ ConférenceMinistres sport

COE ENGSO Fédérationseuropéennes

EPAS+ conf. sportministers

EOC ENGSOEuropeanfederations

MINEPS CIOACNO FIMINEPS IOCANOC IF

Internation

al

National

Local

*

European

Regional

Clubs for agiven sport

Municipal sportsdepartment

Regional sportsoffice

Ministry/SSfor sport

Regional Olympiccommittee

National sportsconfederation*

Regional sportsconfederation*

Figure 5 – The horizontal and vertical organisation of sport

Sports organisations are encountering growing difficulties in securing com-plete horizontal autonomy because states are increasingly subsidising sportand therefore adopting mechanisms to ensure the proper use of the fundsallocated. This form of autonomy above all entails good co-operation betweenpublic and sports authorities of the same level within the legal frameworkspecific to that level, which varies considerably according to the region,country or continent concerned. It is negotiable to some extent, dependingon the resources made available by the local, regional or national authori-ties. At European and international levels, there is a need to reinforce suchco-operation/negotiation.

Vertical autonomy is that enjoyed by lower-ranking sports organisations inrelation to higher-ranking ones within the same sport or on the occasionof a multi-sport competition. Examples are a club in relation to its national(or sometimes regional) federation, a national federation in relation to itsEuropean and/or international federation, an NOC in relation to the IOCand also to the European Olympic Committees (EOC) and the world-levelAssociation of National Olympic Committees (ANOC). A significant restriction

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on this autonomy derives from the fact that the sports rules applied to a givensport are the same throughout the world. The international federations (IFs)tolerate just a few departures from the standard rules in certain countries orcontinents. However, athletes and officials willingly accept the rules for theirsport, especially where they participate in it at a competitive level. This verticalautonomy is “supervised” by WADA (for doping matters) and the CAS (forall sport-related issues which both parties are willing to refer to it, includingappeals against decisions taken by WADA).

As we have seen, these vertical and horizontal forms of autonomy can beincompatible. For instance, a national federation may be required to respectits IF’s rules on nationality, but these rules may clash with its own country’slaw or with the rules of the union to which it belongs. It can even be saidthat, in Europe, the challenge to vertical sports autonomy from the Europeanpublic authorities is growing, as sports policy is interconnected with all kindsof other polices that increasingly come within the EU’s competence (economicmatters, competition, employment, education, health, etc.). Here too, closerco-operation between European public and sports authorities should make itpossible significantly to reduce these incompatibilities and should result ingreater autonomy for European sport. This is doubtless what the continent’ssports organisations are seeking when they call for sports autonomy. In theinternational (non-European) context the situation is more difficult, since theIFs and the IOC today have no qualified corresponding public authorities(except in doping matters through the UNESCO International Conventionagainst Doping in Sport of 2005 establishing WADA). However, as alreadymentioned, the situation in Europe directly influences many non-Europeancountries which have signed agreements with the European Union. A negoti-ated form of sports autonomy in Europe would therefore have worldwideimpact.

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5. SummaryBy way of a conclusion, we first propose a definition of sports autonomy thattakes account of the various aspects of the concept discussed in this report.We then comment on this definition.

The autonomy of sport is, within the framework of national, European andinternational law, the possibility for non-governmental, non-profit-makingsports organisations to:

1. establish, amend and interpret rules appropriate to their sport freely,without undue political or economic influence;

2. choose their leaders democratically, without interference by states orthird parties;

3. obtain adequate funds from public or other sources, without dispropor-tionate obligations;

4. use these funds to achieve objectives and carry on activities chosenwithout severe external constraints;

5. draw up, in consultation with the public authorities, legitimate standardsproportionate to the fulfilment of these objectives.

It must first be said that this definition applies to non-governmental sportsauthorities, which are usually non-profit-making, such as the IOC, IFs, Europeanfederations, national or regional federations and sports clubs, all of whichare private entities legally independent of the public authorities and the com-mercial sector. Historically, it is these organisations that have regulated sportin Europe and worldwide and, in this capacity, they deserve to have theirautonomy recognised under the national law of the countries where theyoperate and under international law as recognised by these countries whenthey accede to international conventions or treaties. In the context of theprinciples of the rule of law, it is on the other hand inconceivable to absolvethem from compliance with this legal framework. It is nevertheless desirableto recognise the right of the sports movement, like that of other communities(including religious ones), to a form of transnational legal organisation thatcan relieve states of concerns which are not part of their primary responsi-bilities and which can, in accordance with the subsidiarity principle, moreappropriately be dealt with by organisations closer to the persons concerned.

As stated in the first indent of the above definition, this autonomy first concernsfreedom to establish, amend and interpret “sports rules”, that is to say therules of the game, competition rules and club rules. These rules − on which

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sports activities are based − must be established after consultation of theinterested parties by the bodies officially responsible for this role and mustbe in keeping with public policy and the general principles of law. It wouldbe useful to have a permanently up-to-date electronic database of these rules.They must also be interpreted firstly by impartial judges, umpires or refereeson the field of play and subsequently by transparent disciplinary bodies,whose decisions may be the subject of appeals to the CAS or even to nationalcourts. Sports autonomy therefore encompasses sports organisations’ self-regulation, a concept which Latty (2007, p. 444) defines as a combinationof internal setting and supervision of rules which primarily relate to those whosubscribe to them.

The second indent of the above definition focuses on the importance ofdemocratic appointment of the leaders of sports associations at all levels,since cases of local or national government interference have been regularlyobserved in such matters. It also outlaws interference by third parties (media,sponsors, investors, etc.), who must be kept out of the appointment process.This also entails an obligation for sports organisations to hold regular elec-tions, representative of stakeholders, on the basis of clear procedures and inaccordance with the principles of good governance. It would also be desir-able to disqualify persons holding public office from appointment to an officein the sports world. The legal independence of organisations should be sup-plemented by the independence of their key officials from governments,sponsors, media and other sports organisations.

The third indent addresses the issue of financial autonomy, making the pointthat there can be no true autonomy without financial resources. However,whether resources are of public or private origin, they must not entail strictobligations for the sports organisations concerned, other than the obligationto manage these funds properly (using proper accounting). From this stand-point, it would be interesting to apply the concept of a consideration suppliedby the sports organisations to the public authorities which subsidise them, asis the case with the money they receive under traditional sponsorship contractsconcluded with private firms. Such a consideration can be defined in theagreements on targets or other similar documents concluded with a givenlevel of government. “Good” self-regulation of the sports sector is already initself a useful consideration supplied to the public sector, which is therebyrelieved of non-sovereign tasks. Thus a move could be made towards financialsupervisory bodies for professional (team) sports.

The fourth indent conversely points out the key need for sports organisationsto be able to set themselves objectives and perform (sports) activities withoutbeing manipulated by their public and above all their private financiers.Sports autonomy also means the ability to pursue purely sport-related goals,in particular the development of sport and the progress of its practitioners.There is often political interference, but commercial pressures should not be

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Summary

overlooked. Sports organisations generally assert that they are free of suchpressures, but this is difficult to verify since their contracts with sponsors andtelevision are not public documents. It can, however, be seen that the rulesof sport are regularly changed to make events more attractive to televisionviewers, or to allow or prohibit the use of certain equipment. Moreover, itwas specifically media, financial and commercial interests that gave rise tothe intrusion of Community law into the sports sector. Third parties (sponsors,media, investors, equipment manufacturers, and so on) should accordinglynot be overlooked in any consideration of the autonomy of sport, and it mustbe a well-established principle that they should not impinge on that autonomy.

Droit national et international établi par ETATS et OIGnotamment lois du sport et conventions sportives ( CEurope , UE, UNESCO, ONU)

Autonomietotale

(sous r éserveOrdre public)

Autonomiecontingenteà la nature del’événement

Autonomielimitée

par lois surl’association

Contrats et conventions priv ées avec TIERS (sponsors, m édias, investisseurs …)





Charte olympique

DRO

ITS

COMMER

CIAUX

SUBV

ENTIONS

PUBLIQ

UES

Autonomiecommerciale

National and international law established by states and IGOsin particular sports laws and conventions (Council of Europe, EU, UNESCO, UN)





Charte olympique

Rules established by sports NGO

Rules of the gamefor a given sport

Olympic Charter

COMMER

CIALRIGHTS

PUBLIC

SUBS

IDIES

Commercialautonomy

Contracts and agreements with third parties (sponsors, the media, investors)

Competition rulesfor a given sport

Club rulesof a sports NGO

Autonomycontingent

on the natureof an event

Completeautonomy(subject to

public policy)

Autonomyrestrictedby law onassociations

Figure 6 – The four degrees of autonomy of sports organisations

Lastly, the fifth and final indent recognises that autonomy can result from co-operation, co-ordination, consultation and even negotiation between parties,far more than from each party ignoring what the others do. This is true bothlocally and nationally (levels at which the EPAS questionnaire, moreover, didnot reveal any major problem of autonomy). It should be even more the caseat the European level, where transnational organisations were long exemptfrom the supervision of lawfulness and proportionality normally performed bypublic authorities in a democratic state. This point is consistent with the seventhprinciple of good governance adopted by the IOC at its second seminar onsports autonomy held in 2008 (see note 1 on p. 8). It echoes the first indent,since, following consultations and the adoption of soft law instruments by thepublic authorities, sports rules may be altered so as to avoid legal disputes.

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Figure 6 sums up the situation, identifying four degrees of autonomy of sportsorganisations depending on the category of sports rules and the kinds ofparties involved (public or private): virtually complete autonomy (as regardsthe rules of the game), contingent autonomy (as regards competition rules),(slightly) restricted autonomy (as regards club rules) and commercial autonomy(governed by contracts signed with third parties).

In conclusion, it can be said that autonomy is one of the fundamental criteriafor a modern model of sports organisation. It is a praiseworthy principle,which is socio-economically justifiable in developed societies. Today, however,this principle clashes with the increasing complexity of the international andOlympic systems and with the growing economic dimension of sport, whichunquestionably facilitates its financial autonomy but also entails new risksdue to the involvement of third parties (sponsors, media, investors, gamblersand so on).

Sports organisations must work with states to develop a new model of sportsautonomy falling somewhere between the ideal of complete autonomy andan undesirable superficial autonomy; it is a question of finding a halfwaypoint between liberalism and interventionism, what might be described as a“negotiated autonomy”, typical of the “social configuration” identified by theVocasport project. Sport will not be able to continue to develop harmoniouslyunless strong negotiated co-operation is established between sports organisa-tions and governments, based on mutual understanding and respect, as wellas regular consultations.

At European level the Council of Europe could very well be the appropriateintergovernmental organisation within which to discuss and implement sucha model, since its geographical scope and its membership in practice coincidewith those of European federations and confederations for the various sports.

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6. Best practices in negotiated autonomy10

This part will describe several examples of balanced and structured rela-tions between the sports movement and public authorities at national orsupranational level, which may be regarded as so many cases of negotiatedautonomy for sport. The examples, deliberately limited to Europe, are groupedaccording to the country/international intergovernmental organisation/non-governmental organisation concerned.

Council of EuropeThe Enlarged Partial Agreement on Sport (EPAS)

In 2007, following over 30 years of activities relating to European sport poli-cies, the Committee of Ministers of the Council of Europe adopted ResolutionCM/Res(2007)8 setting up the Enlarged Partial Agreement on Sport (EPAS),in order to give new impetus to pan-European co-operation on sport and totake up the challenges currently facing sport in Europe. The EPAS was set upto promote sport and the positive values that it represents, to create interna-tional standards and to establish a framework for a pan-European platform ofintergovernmental co-operation on sport. It is also the intention to help publicauthorities in the member states of the agreement (31 countries in June 2009),sports federations and the NGOs holding observer status (ENGSO, UEFA andWADA at the time of writing) to engage in discussions with a view to makingsport healthier and fairer, in a context of better governance.

The EPAS was set up to monitor existing standards, develop responsibilities andexchange good practices (this publication being one of the means of achiev-ing the last-named objective). In drawing up its own strategies, it bases itselfon the Council of Europe standard-setting instruments already in force, suchas the European Sport Charter, Code of Sports Ethics, European Conventionon Spectator Violence and Misbehaviour at Sports Events and in particular atFootball Matches and the Anti-Doping Convention. In 2009, its programme ofactivities is focused on following up the resolutions adopted at the 11th Councilof Europe Conference of Ministers responsible for Sport (which concern ethics,autonomy and co-operation with the European Union and WADA) and onsport’s contribution to integration and intercultural dialogue.

Through the setting up of a consultative committee bringing together sportsorganisations, the EPAS intends to develop dialogue and co-operationbetween states and the sports movement. Thus it offers an appropriate setting

10. These examples have been put forward by a number of European experts, whom I shouldlike to thank here, and particularly Antonello Bernaschi, Stanislas Frossard, Krisztina Göntér,Jean-Luc Janiszewski, Nicolas Lhoist, Pierre Mairesse and Ákos Reinhardt.

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for discussing or even negotiating standards, and for monitoring these acrossa geographical area virtually identical to that covered by the Europeanbranches of international sports federations.

Parliamentary Assembly of the Council of Europe

The Parliamentary Assembly of the Council of Europe (PACE) held a debate in2008 on the need to protect the European sports model from the commercialexcesses of certain professional sports, particularly where television broad-casting rights are concerned. Taking up the rapporteur’s proposals, the PACEcalled for more co-operation between sports authorities and public authorities.Members called for the specific character of sport to be recognised and forthe autonomy of sports federations to be protected. The Assembly can thusoffer a platform for European sports organisations wishing to raise electedrepresentatives’ awareness of the various issues relating to the autonomyof sport. Some European parliaments have also considered these issues,including the United Kingdom’s, which has set up an All-Party ParliamentaryFootball Group (APPFG).

European CommissionEuropean Sport Forum

Since the early 1990s, the European Commission has been holding an annualEuropean Sport Forum, bringing together representatives of European sportsorganisations and governments. The original idea came from the EuropeanOlympic Committees (EOC), the association of all European national Olympiccommittees. The first forum took place in Brussels in 1991, and the mostrecent was held in Biarritz (France) in 2008. The ENGSO (European Non-Governmental Sports Organisation), various European countries’ NOCs,European and international sports federations, the IOC (International OlympicCommittee), sports ministries, the European Parliament and the Council ofEurope have regularly been involved in the work of the forum.

The forum is merely an advisory body, but has made a great contribution toimproved dialogue and understanding among European sport’s variousstakeholders. It has enabled sport’s problems to be highlighted and solutionscompatible with Community law to be considered. Its recommendations haveincreasingly been taken into account by the European Commission as it drawsup its sport policy. Meetings of the forum are prepared by a steering groupon which are represented the three member states of the European UnionTroika, the EOCs and the ENGSO.

Social dialogue in the sport sector

Since the late 1980s, and especially since the signing of the AmsterdamTreaty (1997), the European Union has been promoting a structured dialogue

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Best practices in negotiated autonomy

between both sides of industry (representatives of employers and employees)in every sector of economic and social life. It is one of the key components ofEuropean social policies. This dialogue under the auspices of the Commissionis intended, through negotiation, to nip potential conflicts between stake-holders in the bud, preventing them from ending up in the courts. It enablescommon rules to be agreed on working conditions and industrial relations,giving rise to collective agreements and other contractual documents whichcan gradually be integrated into Community law.

In its White Paper on Sport (2007), the Commission calls for such socialdialogue to be set up in the sport sector as well, particularly for the mosthighly professionalised sports. It was introduced to football following adialogue − not co-ordinated by the Commission − involving UEFA, the EPFL(European Professional Football Leagues) and FIFPro (International Federationof Professional Footballers’ Associations). In July 2008, a Social DialogueCommittee for football was officially set up by the European Commissionersresponsible for sport and social affairs. The aforementioned associations werejoined by the sport’s recently created ECA (European Clubs Association). Thepartners invited UEFA to chair their dialogue.

Outside the football world, other sportspersons are said to be keen to seea social dialogue established at European level. Examples are the cyclistswho asked the European Commission for precisely this in 2007 and theelite European athletes who formed an association (EU Athletes) the sameyear. It is difficult to set up such a dialogue because of the lack of partnersto represent employers at European level. European or international sportsfederations cannot really claim to represent all the stakeholders, particularlyteam owners, event organisers, fitness club owners, etc. In order to alleviatethis problem, a European Association of Sports Employers (EASE) was setup in 2003 by five employers’ organisations from four European countries,including the CoSMoS (Conseil Social du Mouvement Sportif) which setthe early pace in this field in France. EASE has grown to a 2009 total ofeight members. It has combined with EURO-MEI, the European organisationrepresenting wage-earners in the media, entertainment and arts sector, to co-ordinate a European Commission-funded project to develop social dialoguethroughout the sport sector, known as the CC (Content and Contact) Project.This project should enable a social dialogue committee in the sport sector tobe set up in the years ahead, under the aegis of the European Commission,thus making it possible, inter alia, to engage in negotiations among the mainstakeholders to agree on sports rules providing greater legal certainty for all.A social dialogue of this kind may also culminate in the drafting of commoncodes of conduct covering matters such as training, working conditions andthe protection of young people. This is therefore a good example of negoti-ated autonomy for sports organisations in the context of the regulation oflabour relations in sport.

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World Anti-Doping AgencyWorld Anti-Doping Code

The World Anti-Doping Code was drawn up in 2003 by the World Anti-Doping Agency, an international organisation within which the OlympicMovement and governments are equally represented. The code is revisedevery four years to take account of changes in the situation (the first revisiontook place in 2007). It is recognised by over 100 states, which have ratifiedan ad hoc convention drawn up by UNESCO in 2005. The convention alsorecognises WADA as the organisation responsible for the fight against dop-ing at international level. The International Convention against Doping inSport drew heavily on a similar convention adopted by the Council of Europein 1989, which is still binding on most of its member states and some otherstates, following work which began in the 1970s.

In 2008, the Council of Europe highlighted serious problems thrown up bythe version of the code adopted in 2007, and applicable with effect from2009, relating to the new rules on international exchange of data concerningathletes and their personal details which have to be continually updated (the“whereabouts rules”). These standards were unacceptable in relation to mostEuropean legislation on data protection and human rights. These problemswere highlighted at the 11th Council of Europe Conference of Ministersresponsible for Sport, held in Athens in December 2008, a conference atwhich the Spanish State Secretary for Sport was elected as the Council ofEurope’s representative on the Executive Committee of WADA. Early in 2009,a meeting in Madrid was attended by the various stakeholders, including theCouncil of Europe and WADA, in an effort to come up with improved ruleson data exchange, which were subsequently unanimously approved by theWADA Executive Committee. Thus negotiation between sports and govern-mental organisations made it possible to prevent certain anti-doping rulesfrom being easily challengeable in European courts, but without compromis-ing the fight against doping.

Fédération Internationale de Football Association(FIFA)FIFA standard co-operation agreement

In 2007, the Fédération Internationale de Football Association adopted astandard co-operation agreement. This is a model agreement for signaturebetween a state’s national football federation and its government (sport min-istry or other responsible body). It is intended to regulate relations betweenthe two parties and to harmonise the respective tasks of each in respect ofthe administration of national teams and football competitions in the signatorystate, as well as security, finance and any related issues. The aim is to ensurethe best possible co-operation and the partnership necessary to the good

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governance and the development of football in the state concerned, withinFIFA rules. To a certain extent such an agreement may be negotiated betweenthe parties, thus allowing a national federation to make the scope of itsautonomy perfectly clear. There are few examples of signed agreements todate, however. Ultimately, such agreements could become compulsory forany country participating in the football World Cup.

The European Olympic Committees (EOC)Liaison office

In the early 1990s, the German sports movement and certain regions (Länder)felt the need to set up and finance a German sports office in Brussels to beresponsible for monitoring and analysing European Union activity relating tosport. Support gradually came for this office from the national Olympic com-mittees of several European countries and the association, European OlympicCommittees (EOC), as well as a dozen international and European sportsfederations. It publishes a bimonthly newsletter for members. As well as itsmonitoring activity, it is responsible for representing the interests of the EOCand its members, and particularly for lobbying the European Commission. Itmay be said to have made a strong contribution to the gradual inclusion ofsport in European documents and treaties, right up to the Treaty of Lisbon,although this integration has not yet been finalised to the satisfaction of thesports movement.

In 2009, this Brussels structure became the official office of the EOC. Thusthe Olympic Movement has a standing body liaising with the European insti-tutions, one which can do much to promote negotiated autonomy. Early in2009, regular six-monthly meetings started between the European Commission(represented by the Commissioner responsible for Sport) and the OlympicMovement (represented by the presidents of the IOC and the EOC), afford-ing an opportunity to deal with all major issues for sport in the medium orlonger term.

Union of European Football AssociationsSale of broadcasting rights for European competitions

In 2005, UEFA agreed with the European Commission’s Directorate Generalof Competition on the principles which should govern the sale in the EuropeanUnion and European Economic Area of the television broadcasting rights forits main competitions (Champions League, UEFA Cup and UEFA Super Cup)for maximum periods of three years and per package of matches. UEFA thusnegotiated to its own full satisfaction its autonomy to regulate the sale of itsrights (competition rules), in order to avoid appeals of uncertain outcomebeing made by European television channels or networks under Communitycompetition law.

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FranceAgreements on objectives (Conventions d’objectifs)

In 1945, the state assigned to itself by law the sole power to select teams torepresent France and to award the title champion of France, while immediatelydelegating this power to national federations on condition that they acceptedcertain organisational provisions. On the basis of the 1984 Sport Act (loi surle sport), this delegation was extended to all the activities of approved nationalfederations. Agreements on objectives between the sport ministry and eachindividual federation were set up from 1987 onwards. Such agreementscover several years and are the main tool of the financial partnership betweenthe state and the sport movement. They are a tangible expression of thewillingness of the sport ministry and its voluntary-sector partners to worktogether on the public service mission of developing physical and sportsactivities. Such activities are the operational and financial result of a sportpolicy based on partnership (entailing dialogue between two leading playersin the sporting sector) and on a contract (entailing mutual commitmentsevaluated each year). The whole process is based on a critical review by thefederation concerned after each Olympic Games, and the definition of afederal strategy, objectives, priorities and means for the next four years. Eachyear, meetings are held between the ministry and the federations to checkthat commitments are being honoured, and results are evaluated.

Financial assistance from the state within this framework amounted to almost€89 million in 2008. These financial resources were supplemented by theprovision, again in 2008, of 1 671 managerial staff for the local, regionaland national levels of sport. A decree of 2005 specified their role and theconditions in which they carry it out. Specially tailored instruments clearlydefine their duties, responsibilities and working conditions: letters of assign-ment, outline agreements, regional technical team agreements. The practiceof agreements on objectives between the state and the sport movement hasbeen continuously improved over the past 20 years. The system is now partof the arrangements intended to ensure that French federations and sportsgroupings have the degree of autonomy that their members wish, althougha few voices are heard complaining that the French Ministry of Health andSports interferes too much.

National Directorate for Management Supervision (DNCG)

Under France’s Sport Act, the articles of the French Football Federation (FFF)and an agreement between the federation and the French Football League(LNF), a National Directorate for Management Supervision (DNCG) hasbeen set up to provide legal and financial supervision of affiliated clubsand to ensure that they meet the conditions set by FFF and UEFA rules forparticipation in competitions. The main objective is to ensure clubs’ solvency

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for the forthcoming season, if necessary by restricting or prohibiting playerrecruitment, or by demoting a club to a lower division if it lacks the financialresources to get through the season. The DNCG comprises three nationalcommittees and regional committees, each made up of members, appointedby organisations representing employers and staff in French football, whoare not members of the governing bodies of the FFF, LNF or clubs. Although itlacks legal or financial autonomy, it is deemed independent and representa-tive by those who work in the sector.

The DNCG is acknowledged to have contributed, since it was set up in1984, to the good financial health of French clubs as compared to some oftheir European counterparts. Healthy finances foster good governance andgreater autonomy from the public authorities, especially financial autonomy.Some would like to see the French model expanded into the rest of Europe,so that every national federation can better regulate professional football inits country, and UEFA itself in 2000 adopted a system of licences for clubstaking part in its competitions which goes in the French model direction.

Conciliation by the CNOSF

France’s Sport Act of 1984 confers on the French Olympic and SportCommittee (CNOSF) a conciliation role in the event of disputes (other thanthose relating to doping) between affiliated members of sports clubs, the clubsthemselves and approved national federations. Since 1992, conciliation hasbeen compulsory prior to any application to the national courts in respect ofa dispute resulting from a decision taken by a federation in the exercise ofits public powers (see the above paragraph on agreements on objectives).This procedure has the major advantage for the sport movement of makingit possible to try to resolve disputes between its members autonomously andspeedily, thereby avoiding the need for the courts to get involved. It can evenbegin before a federation’s internal remedies have been exhausted. Between1992 and 2007, 2 814 applications for conciliation were examined, of which589 were deemed inadmissible, while 485 (approximately 21% of thosewhich were deemed admissible) culminated in an agreement between the par-ties during the procedure. Of the 1 740 conciliation proposals made, 1 087(62%) were accepted. Overall, more than 70% of the disputes were resolved,thus preserving the vertical autonomy of sport in France. Furthermore, onlyaround 30% of the unresolved disputes were the subjects of complaints to theappropriate national courts (source: www.comite-olympique.asso.fr/art/84/statistiques.html).

GermanyGerman Olympic Sport Confederation (DOSB)

In 2006, the German Sport Confederation (DSB) and the National OlympicCommittee for Germany (NOK) merged to form the German Olympic Sport

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Confederation (DOSB), which thus became the sole umbrella organisationfor sport in Germany, bringing together almost 100 national federationsrepresenting over 27 million members, which makes it by far the largest non-profit-making social organisation in the country. It receives no governmentsubsidies for its administrative budget. The German federal government andthe regional governments (Länder) co-operate with the DOSB on the basis ofthree principles fully accepted by all: autonomy, subsidiarity and partnership.This co-operation takes place to the satisfaction of the sports movement andthe German public authorities, whereas previously some tensions had beenevident.

The German Federal Ministry of the Interior (which also has sport in its remit)has signed a contract with the DOSB to support high-level German sport. Thecontract clearly sets out both parties’ mutual rights and obligations in returnfor a financial contribution from the federal state. Another example of closeco-operation is the fight against doping, involving an integrated system ofcontributions from the government and from German sport, on the basis ofa 10-point action plan drawn up by the DOSB. These two examples demon-strate the possibility of negotiating autonomy for sport at national level in twosensitive fields: doping and elite sport, especially when unity of the sportsmovement has been fully achieved. Such negotiated autonomy is symbolisedby an annual meeting between the board of the DOSB and the President ofthe Federal German Republic.

HungaryState Secretariat for Sport of the Ministryfor Local Government

Hungary has had a sport act since 1996. In 2000, the act was amended toplace the activities of sports federations under the legal supervision of theindependent prosecutor general, instead of the state secretariat for sport. Thisprovision, for which Hungarian sports organisations had been calling,improved their legal autonomy. Where financial autonomy is concerned, theact provides for state subsidies to be awarded by an annual ministerial decreeto five of Hungarian sport’s governing organisations (national Olympic com-mittee, paralympic committee, confederation of sports federations, sport forall committee, and disability sport committee). It is these five organisationswhich decide, on the basis of transparent criteria, how the sum awarded bythe state from its annual budget is to be divided among their members.

ItalyItalian National Olympic Committee (CONI)

The CONI has been a completely independent and autonomous public bodysince the post-war period. While it is under the supervision of the office of the

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Italian Government’s Under-Secretary for Sport, this only verifies the lawful-ness of its acts, and not their merits. Thus the CONI did send an Italian teamto the Moscow Summer Olympics in 1980, although the Italian Governmentdid not allow any athletes who were members of the armed forces to takepart. The CONI is financed from the profits of gambling on sport, as wellas from other sources (state subsidies, sponsorship, sale of services, etc.).It redistributes some of its income, on the basis of transparent rules, to thenational sports federations, which are now private bodies regulating theirsport autonomously, and which, in particular, have independent appeal bod-ies (“sports tribunals”).

Sport autonomy is explicitly recognised in Italy’s Sport Act of 2003, whichstates that:

Article 1 – General principles

1. The Republic shall recognise and promote the autonomy of the national legalsystem relating to sport, as linked to the international legal system [lex sportiva]relating to sport for which the International Olympic Committee is responsible.

2. Relations between the systems mentioned in paragraph 1 shall be regulatedon the basis of the principle of autonomy, other than in cases in which subjectivelegal situations connected with the legal system relating to sport are of effectiveimportance to the legal system of the Republic [Italian Law].

Article 2 – Autonomy of the legal system relating to sport

1. In application of the principles to which Article 1 refers, the regulation ofquestions relating to:a. the proper conduct of sports activities and competitions;b. the behaviour regulated by disciplinary rules, and the imposition and applica-tion of disciplinary penalties relating thereto;c. the admission and affiliation to sports federations of companies, sports clubsand individuals;…

is reserved for the legal system relating to sport.11

11. Art. 1. Principi generali1. La Repubblica riconosce e favorisce l’autonomia dell’ordinamento sportivo nazionale, qualearticolazione dell’ordinamento sportivo internazionale facente capo al Comitato OlimpicoInternazionale.2. I rapporti tra gli ordinamenti di cui al comma 1 sono regolati in base al principio di autono-mia, salvi i casi di effettiva rilevanza per l’ordinamento giuridico della Repubblica di situazionigiuridiche soggettive connesse con l’ordinamento sportivo.Art. 2. Autonomia dell’ordinamento sportivo1. In applicazione dei principi di cui all’articolo 1, e’ riservata all’ordinamento sportivo ladisciplina delle questioni aventi adoggetto:a. il corretto svolgimento delle attivita’ sportive ed agonistiche;b. i comportamenti rilevanti sul piano disciplinare e l’irrogazione ed applicazione delle relativesanzioni disciplinari sportive;c. l’ammissione e l’affiliazione alle federazioni di societa’, di associazioni sportive e di singolitesserati.

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The solution adopted by the Italian legislature for the CONI and sport is agood example of negotiated autonomy at national level. This legal frameworkconducive to autonomy nevertheless faced a challenge in the shape of the upsand downs which recently affected Italian professional football. The sector’seconomic dimension forced those involved − sometimes legitimately − to turnto the national courts. It became clear that it was vital for appeal bodies tobe completely independent of sports organisations’ executive and legislativeorgans.

NetherlandsGood Sport Governance Code

In 2005, at the initiative of the National Olympic Committee and NationalSport Federation of the Netherlands (NOC*NSF), the country’s sport feder-ations adopted a code of good governance (Good Sport Governance Code).This contains 13 recommendations grouped in six areas: coherence andtransparency; procedure for the election and appointment of officials; separ-ation between executive, policy making, supervisory and implementationduties; definition of the duties, powers and responsibilities of management;role of the general meeting; code of conduct. Some 26 of the 72 Dutch fed-erations then undertook to check that they were in conformity with the code.As the new century’s first decade progressed, however, the organised sportsector continued to lose ground to the commercial sector of fitness and othersport service providers. In 2007, the NOC*NSF decided to offer its memberfederations better support by, for instance, helping them to draw up strategicplans and launching an Internet site setting out the best managerial practicesin sport in the Netherlands.

In 2008, the Good Sport Governance Code was combined with a classifi-cation system whereby federations are awarded one, two or three stars, onthe basis of their service quality. Two thirds of federations were awarded asingle star (the lowest category), but are working to improve their classifica-tion. Those awarded no star have been recommended to merge with others.Ultimately, any federations not meeting the minimum governance and qualitystandards set will have their subsidies greatly reduced or even cut off. TheNOC*NSF has thus, in the space of a few years, managed to negotiate withits member federations an improvement in their governance practices fullyjustifying their financial autonomy.

SwitzerlandSwiss Sport GAAP

In 2004, Swiss Olympic, which is the confederation of Swiss national sportsfederations and Switzerland’s National Olympic Committee, adopted a set ofaccountancy standards for itself and its member federations. These standards,

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described in a handbook issued by a major accountancy firm (PwC), areentitled “Swiss Sport GAAP”. As the name indicates, they are based onGAAP (Generally Accepted Accounting Principles), adapted to the needs ofSwiss sport following negotiations with the main stakeholders. The handbookcontains numerous model documents which are ready for use. The federationsrecognised by Swiss Olympic must adopt this model for their accounts andannual balance sheet in order to continue to qualify for grants. Grants fromthe federal government, formerly paid directly to national federations by theFederal Sport Office, are in practice paid in full to Swiss Olympic, which isresponsible for distributing them among its members on the basis of sport-ing and other criteria, including precisely the criterion of proper accountingwhich enables the use made of the grants received to be identified. A sys-tem of strategic annual discussions between Swiss Olympic and its memberOlympic sport federations is now being set up. While maintaining federations’management autonomy, their umbrella association guarantees that the fundsallocated by the federal state and other sources can be imputed, thanks tothe Swiss Sport GAAP.

65

BibliographyArnaut, J.-L. (2006). Independent European Sport Review, UK Presidency ofthe EU, 2005.

Bousigue, A. (2008). “Le sport dans la politique de la RPC vis-à-vis des Etats-Unis: Quel rôle? 1949-1984”, unpublished thesis for Sciences Po Lyon,France.

Burns, T. (2003). “European sports federations: a critical review of the optionsfor incorporations”, Entertainment Law, Vol. 2, No. 2, pp. 1-19.

Camy, J. et al. (2004). “Improving employment in the field of sport in Europethrough vocational training”, Vocasport project, Education and Culture DG,Brussels.

Chaker, A.-N. (1999). Study of national sports legislation in Europe, Councilof Europe Publishing, Strasbourg.

Chaker, A.-N. (2004). Good governance in sport. A European survey,Council of Europe Publishing, Strasbourg.

Chappelet, J.-L. (2008). The International Olympic Committee and the Olympicsystem. The governance of world sport, Routledge, London.

Cohen, B. (2007). “Regard sur la spécificité du sport au travers du droiteuropéen de la concurrence relative à la vente centralisée des droits deretransmission d’événements sportifs”, unpublished essay written during amaster’s degree course in law at the University of Fribourg, Switzerland.

Coubertin, P. de (2009). Une campagne de vingt-et-un ans (1887-1908)[21-year campaign], Plon, Paris, p. 152 (Chapter XVI) (reprinted in Pierrede Coubertin Textes choisis under the direction of N. Müller).

Duval, J.-M. (2002). Le droit public du sport : Etat et fédérations sportives, com-pétitions et réglementations sportives, service public et monopole, Economica-PUAM, Paris.

ETSF (July 2008). Safeguarding the heritage and future of team sport inEurope, European Team Sport Federations.

Foster, K. (2005). “Alternative models for the regulation of global sport” inThe global politics of sport (A. Lincoln, Editor), Routledge, London, pp. 63-86.

Husting, A. (1998). L’Union européenne et le sport. L’impact de la construc-tion européenne sur l’activité sportive, Juris Services, Lyon.

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Kaufmann-Kohler, G. et al. (February 2003). Legal opinion on the conform-ity of certain provisions of the draft world anti-doping code with commonlyaccepted principles of international law. Available at www.wada-ama.org.

Kummer, M. (1973). Spielregel und Rechtsregel, Stämpfli, Bern.

Latty, F. (2007). La lex sportiva. Recherche sur le droit transnational, MartinusNijhoff Publishers, Leiden, Netherlands.

Marguénaud, J.-P. (2008). “Olympisme et droits de l’Homme” in Revuejuridique et économique du sport, 87, pp. 143-152.

Miège, C. (2000). Le sport dans les Etats membres de l’Union européenne,Presses universitaires du sport, Voiron.

Simon, G. (1990). Puissance sportive et ordre juridique étatique, LGDJ, Paris.

VOC (2009). Virtual Olympic Congress. June 2009. IOC AdministrationNOC Relations Department contribution (3.3.1.1). IOC, Lausanne, pp. 1670-1672.

Weatherill, S. (2007). “On overlapping legal orders: What is the ‘purelysporting’ rule?” in The regulation of sport in the European Union (Bogusz B.,Cygan A. and Szyszczak E., Editors), Edward Elgar Publishing, London,pp. 48-73.

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AppendicesAppendix 1EPAS questionnaire on autonomy in sport in Europe

Appendix 2Working document and Resolution No. 2 on autonomy in sport, adopted bythe 11th Council of Europe Conference of Ministers responsible for Sport,Athens, 10-12 December 2008

Appendix 3Chronological study of the Olympic Charter and a selection of documentsissued by sports organisations with regard to the concept of autonomy

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Appendix 1: EPAS questionnaire on autonomyin sport in Europe

Strasbourg, 29 May 2008

Circular letter EPAS 1

To the Heads of Delegation and observers to the Enlarged Partial Agreementon Sport (EPAS)

cc. Permanent Representations

Subject: Questionnaire on autonomy in sport in Europe

Dear Delegate,

The Secretariat of EPAS has finalised the questionnaire on autonomy in sport inEurope adopted by the Bureau. This questionnaire comprises five approachesand aims to better understand the situation of autonomy in sport.

In order to gather the widest input for the 11th Council of Europe Conferenceof Ministers responsible for Sport which will be held in December, I kindlyask you to fill in the questionnaire and send it back by e-mail to Claire Fraser([email protected]) before 30 June 2008.

Please also send this questionnaire to your national sports umbrella organisa-tions in order to have their answers and thus broaden the results. Someorganisations may have already received it through ENGSO; in this case,they do not have to fill it in again.

Yours sincerely,

Stanislas FROSSARDEPAS Executive Secretary

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Appendices

Strasbourg, 22 May 2008 EPAS (2008) 2rev

Enlarged Partial Agreement on Sport (EPAS)Questionnaire on autonomy in sport in Europe

(to be filled out in French or English only and sent to the Secretariat by30 June 2008)

Categories of responding entity

A. Public authority in charge of sports policies

B. National sport umbrella organisation

(for example national sports confederation or national Olympic committee)

C. International federation/organisation

Contact person

Organisation:Country :

Mr MsFirst name:Surname:Position:Postal address:

Tel.:Fax:E-mail address:Date:

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Background

The practice of physical and sporting activities in Europe is founded on acollection of positive individual and collective values that the Council ofEurope has endeavoured to promote since the adoption of the EuropeanSport for All Charter in 1976. Due to their changing nature, some of thesevalues remain fragile and could even disappear from the culture of sport ifwe do not guard against their disappearance, as underlined by the 1999“Helsinki report on sport”.12 It is therefore not surprising that the attention ofpoliticians, legislators, administrators or sports executives may be drawn totheir preservation from time to time.

The autonomy of the sports movement, or “sports autonomy” as some call it,is one of the elements whose protection or reinforcement is regularly solicited.The Council of Europe explicitly recommended it in 1986,13 as did the headsof state and governments of the European Union in 2000.14

More recently, in January 2007, while the European Union was consideringa modified treaty, the International Olympic Committee (IOC), through itspresident, Jacques Rogge, voiced the opinion that an “important referenceto the autonomy of sports organisations [was] missing”. Mr Rogge’s letterwas addressed to heads of state and to ministers for foreign affairs and sport,and invited their responses.

Shortly thereafter, Joseph Blatter, the president of the international footballfederation (FIFA), followed in Mr Rogge’s footsteps. At a meeting in Zurichon Friday 5 October 2007, Mr Blatter made the following statement to anassembly of journalists from the largest European press agencies: “Thepresident of the IOC, Jacques Rogge, sent a letter to the presidents of theEuropean Union governments concerning the specificity of sports in general.FIFA completely supports the IOC on this subject. Our point of view is thefollowing: we respect the national and international political organisationsin their efforts to put into place laws in support of sports. But we ask, alongwith the IOC, that the political institutions respect the existing rules and statutesand allow sports organisations to maintain their autonomy.”

These aspirations towards autonomy (or for more autonomy) at internationallevel are legitimate in free societies. They are also expressed at national level.However, it is rare for this idea to be put forth so explicitly. It is therefore

12. “Report from the Commission to the European Council, with a view to safeguarding currentsports structures and maintaining the social function of sport within the Community framework”,Brussels, 10 December1999, COM(1999)644 final.13. New forms of collaboration in sport (seminar at Papendal, Netherlands, 1986).14. Declaration on the specific characteristics of sport and its social function in Europe, of whichaccount should be taken in implementing common policies (Presidency Conclusions, NiceEuropean Council Meeting, 7-9 December 2000, Annex IV).

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Appendices

reasonable to examine the meaning behind such a request, and to question itsreal and concrete dimensions in Europe, even the possibility of its evolution.

The present study aims to establish the current “state of play” with the goalof enabling informed political discussion on the matter at pan-European level.

As far as methodology goes, a survey by questionnaire will be carried outin June of governmental and non-governmental (sports confederations ornational Olympic committees) sports authorities of the 25 countries who areparty to the Enlarged Partial Agreement on Sport (EPAS) of the Council ofEurope.15

The questionnaire comprises five approaches: (1) a conceptual study, (2) apolitical study, (3) a legal study, (4) a financial study, and (5) a psycho-sociological study.

1. The conceptual study aims to determine what governmental and non-governmental sports authorities understand by the concept of “autonomy”.

2. The political study intends to establish whether, and in what terms, theconcept of “sports autonomy” has appeared in political statements, speeches,documents, etc., from relevant government politicians or representatives fromnational sports confederations (in the course of the past 12 months).

3. The legal study concentrates on the inclusion of the concept of “autonomyof the sports movement” or “sports autonomy” in legal texts at national level,as well as relevant non-legal documents.

4. The financial study seeks to determine whether “financial autonomy” existsin European sports movements, and if so, how it is realised.

5. The psycho-sociological study has the objective of asking sports authoritiesto specify whether they consider that their national sports movement is “auton-omous” (at the date of the questionnaire). And if that is the case, they areasked to place this autonomy on a quantitative scale. We shall also attemptto learn in what areas this “autonomy” could progress in the future.

15. As at 22 May 2008: Andorra, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Cyprus,Denmark, Estonia, Finland, France, Greece, Hungary, Iceland, Latvia, Liechtenstein, Luxembourg,Monaco, the Netherlands, Norway, San Marino, Serbia, Slovenia, Sweden, Switzerland, “theformer Yugoslav Republic of Macedonia”, and the United Kingdom.

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0 – Preliminary question

Has your organisation previously responded to a survey on “the autonomyof the sports movement in Europe”?

Yes :No:

If “yes”, please indicate:– the year:– the name of the organisation conducting the survey:– and the title or main subject of the survey:

1 – Conceptual study

The conceptual study aims to determine what governments and sportsauthorities understand by the concept of “autonomy”.

People asked to spontaneously associate words with the name “Pierre deCoubertin” responded with the following terms: “Olympic Games”, “sport”,“aristocracy”, “modern pentathlon”, “20th century”, “France”, etc.

If you were to associate very rapidly and spontaneously between 5 and10 words (or phrases) with the term “autonomy of the sports movement”,what would these words be?1.1.11.1.21.1.31.1.41.1.51.1.61.1.71.1.81.1.91.1.10

2 – Political study

The political study intends to establish whether, and in what terms, the con-cept of “sports autonomy” has appeared in political statements, speeches,documents etc., from relevant government politicians or representativesfrom national sports confederations, (in the course of the past 12 months).

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Appendices

Question 2.1 to be answered only by public authorities and national sportsorganisations (cat. A and B)

2.1. What is the political trend of the party (or parties) currently in power inyour country?

– left:– centre left:– centre :– centre right:– right:

Question 2.2 to be answered only by public authorities (cat. A)

2.2. Has there been any reference to the concept of “the autonomy of thesports movement” in political statements, speeches, etc. and/or relevantgovernment documents (in the course of the past 12 months)?

Yes:No:

If yes, can you (briefly) indicate in what context this reference was made?

Question 2.3 to be answered only by sports organisations and federations(cat. B and C)

2.3. Please indicate if there has been any reference to the “autonomy of thesports movement” in political declarations by those in charge of sportsorganisations or federations (in the course of the past 12 months), and/orrelevant policy documents by the sports organisations or federations in yourcountry.

Yes:No:

If yes, can you (briefly) indicate in what context this reference was made?

Question 2.4 to be answered only by public authorities and national sportsorganisations (cat. A and B)

2.4. Has your country chosen to entrust the main part of the responsibility ofphysical activities and sports management to:

– a ministry and/or a secretariat of state or a state agency:

– a sports confederation or a national Olympic committee:

– to both of them:

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3 – Legal study

The legal study concentrates on the inclusion of the concept of “autonomyof the sports movement” or “sports autonomy” in legislative texts at nationallevel, as well as relevant non-legal documents.

Questions 3.1 to 3.7 to be answered only by public authorities and nationalsports organisations (cat. A and B)

3.1. Does your country’s constitution (or the fundamental law of your country)include a specific reference to sport or physical activity?

Yes:No:

3.2. Does your country’s constitution (or the fundamental law of your country)include a specific reference to “the autonomy of sports”?

Yes:No:

3.3. Does your country have a law (or several laws) specific to sport, or otherlegislation of relevance to sport (for example, association acts)?

Yes:No:

3.4. Does the specific law (or laws) pertaining to sport, or other legislationof relevance to sport in your country, include a reference to “the autonomyof the sports movement” or “the autonomy of sport”?

Yes:No:

3.5. If the answer to the previous question is “yes”:

Does the law (or laws) pertaining to sport, or other legislation of relevance tosport in your country, include a legal definition of “the autonomy of the sportsmovement” or “the autonomy of sports” or a reference to these concepts?

Yes:No:If “yes”, what is the definition (or reference)?

3.6. Are there other public documents, non-legal but with a relevance to theimplementation of sports policies (for example, governmental programme onsport, governmental sports strategy), that would describe the status of sport

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Appendices

and/or “the autonomy of the sports movement” or “the autonomy of sports”in your country?

Yes:No:If “yes”, please describe:

3.7. Are there other non-public documents, documents with a relevanceto the implementation of sports policies (for example, statute of the sportsconfederation, internal sports regulations, sports movement’s strategy) thatwould describe the legal status of sport and/or “the autonomy of the sportsmovement” or “the autonomy of sports” in your country?


Question 3.8 to be answered only by international federations and organisa-tions (cat. C)

3.8. Are there other non-public documents, documents with a relevance tothe implementation of sports policies (for example, Olympic Charter, internalsports regulations, sports movement’s strategy) that would describe the statusof sport and/or “the autonomy of the sports movement” or “the autonomy ofsports” in your country?


Questions 3.9 to 3.10 to be answered by all responding entities (cat. A, Band C)

3.9. A public law theory16 definition concerning the autonomy of institutionsstipulates that “it is the situation of communities or establishments having notgot their full independence towards the State, they are part of and to whichthey are connected, but endowed with an entire internal freedom to governthemselves or to administrate themselves”.

With regard to that definition, do you consider the sports movement of yourcountry (or in Europe, if you are cat. C) to be autonomous?

Yes:No:Comments:

16. Gérard Cornu, Vocabulaire juridique, PUF, Paris, 1987.

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3.10. If you answered “no” to questions 3.4, 3.5 or 3.8, would you considerthat a legal definition of “the autonomy of the sports movement” or a mentionof “the autonomy of the sports movement” in a law or in other relevantdocuments would be useful:

at national level?

Yes:No:

at European level (for example, in a political recommendation or in a treatyon sport)?

Yes:No:

4 – Financial study

The financial study seeks to determine whether “financial autonomy” existsin European sports movements, and if so, how it is realised.

Questions 4.1 to 4.11 to be answered only by public authorities and nationalsports organisations (cat. A and B)

4.1. Please indicate how the term “financial autonomy of the sports move-ment” is defined or generally understood in your country/sports authority,and mention its main characteristics.

4.2. What are the main financial sources of the sports movement in yourcountry? Please differentiate between various levels and parts of the sportsector, if relevant.

4.3. Can these financial sources be ranked by their order of importance?

Yes:No:

If “yes”, what is their ranking? Please differentiate between various levelsand parts of the sport sector, if relevant.

(a)

(b)

(c)

(d)

(e)

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Appendices

4.4. Does the sports movement in your country obtain financial support fromthe government?

Yes:No:

4.5. Could the sports movement in your country continue to exist, as it isorganised today, without financial support from the government?

Yes:No:

Comments:

4.6. Would you say that, compared to the financial means at the disposal ofthe sports movement in your country, the amount of governmental financialsupport and consequently the “relative dependence” of the sports movementin your country on governmental financial support would be located between:

Averagedegree

of dependenceof sports enti-ties at national

level (e.g.national fed-eration, sportsconfederation)

Averagedegree

of dependenceof sports enti-ties at regional

level (e.g.regional sportsassociation)

Averagedegree

of dependenceof sports

entities at locallevel (e.g. localsports club)

Averagerelative

dependenceof all sports

entities

0% and 25%26% and 50%51% and 75%76% and 100%

4.7. In your country, are any sports sectors “strongly supported” by govern-mental subsidies and others “weakly supported”?

Yes:No:

If you have answered “yes” could you please give:

– an example of a “strongly supported” sector:

– an example of a “weakly supported” sector:

4.8. Does the government give guidance on the use of the funds it places atthe disposal of the sports movement in your country? (for example, allocation

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of funds is defined by law, contract or decision for specific goals like elitesport, fight against doping, sport facilities, etc.)

Yes:No:If “yes”, please explain:

4.9. If you answered “yes” to question 4.8, what is the percentage of thefunds placed at the disposal of the sports movement in your country that canbe used for needs identified by the sports movement?

0% and 25%26% and 50%51% and 75%76% and 100%

4.10. Does the government control the management of the funds it places atthe disposal of the sports movement in your country, for example, by settingconditions (for example, reporting requirements, auditing procedures, etc.)?

Yes:No:If “yes”, please explain:

4.11. Can the sports movement in your country be defined as “financiallyautonomous”?

Yes:No:Please explain:

5 – Psycho-sociological study

The psycho-sociological study has the objective of asking sports authoritiesto specify whether they consider that their national sports movement is“autonomous” (at the date of the questionnaire), and if this is the case, theyare asked to situate this autonomy on a quantitative scale. We shall alsoattempt to learn in what areas this “autonomy” could progress in the future.

5.1. On the whole, can the sports movement in your country or under yourauthority be described as “autonomous” at the present time?

Yes:No:

Neither yes nor no:

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Appendices

5.2. Please elaborate on the answer given in 5.1 and include, if relevant,variations in the sports movement’s state of autonomy depending on the aspectof autonomy in question (political, legal, financial, etc.)

5.3. If you had to place “the autonomy of the sports movement” on a scaleof 0 to 10, where a mark of 0 would represent “a total absence of autonomy”and a mark of 10 “complete autonomy”, what mark would “the autonomyof the sports movement” obtain in your country?

Absenceof

autonomy

Completeautonomy

Politicalautonomy

0 1 2 3 4 5 6 7 8 9 10

Legalautonomy

0 1 2 3 4 5 6 7 8 9 10

Financialautonomy

0 1 2 3 4 5 6 7 8 9 10

Your overallrating of theautonomyof the sportsmovement inyour country

0 1 2 3 4 5 6 7 8 9 10

Question 5.4 to be answered only by public authorities (cat. A)

5.4. If the sports movement in your country is not yet considered to be “com-pletely autonomous”, what recommendations could be made in order for thesports movement to obtain more autonomy in the future?

Question 5.5 to be answered only by national sports organisations andinternational organisations and federations (cat. B and C)

5.5. If the sports movement in your country is not yet considered to be “com-pletely autonomous”, what recommendations could be made in order for thesports movement to obtain more autonomy in the future?

5.6. This study has looked at five aspects of the sports movement autonomy(conceptual, political, legal, financial, psycho-sociological). Is there any otheraspect of the sports movement autonomy which would be worth exploring?

Yes:No:If “yes”, what would it be?

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Appendix 2: Working documentand Resolution No. 2 on autonomy in sportadopted by the 11th Council of Europe Conferenceof Ministers responsible for Sport,Athens, 10-12 December 2008

Working document and preliminary points for discussion

Introduction

The concept of the autonomy of sports organisations, particularly nationalOlympic committees (NOCs), was clearly identified by the Olympic Movementback in the 1950s, and by European intergovernmental organisations fromthe 1990s onwards. It has been regularly reaffirmed in the new millenniumby both parties. The lack of development and absence of a definition of theconcept in both sports and government organisations’ documents is, never-theless, striking.

Furthermore, notwithstanding affirmations of autonomy made by both sportsorganisations and public authorities, there have been many examples ofinterference in the rules associated with the holding of sports competitions,interference not only by governments, but also by sports organisations andathletes, no longer showing any reluctance to appeal to national or Europeancourts. Although such action is sometimes justified, it entails genuine lossesof autonomy for sport.

The question of relations between non-governmental organisations (NGOs)and states is within the Council of Europe’s remit, since it is covered by theEuropean Convention on Human Rights (Article 10 – Freedom of association),and as many rules and recommendations have been adopted on the status ofNGOs and their relations with the public authorities (one example being theFundamental Principles on the Status of Non-Governmental Organisations inEurope). In the sport sector, the Council of Europe attaches great importanceto the autonomy of the sport movement. Autonomy is one of the principlesunderlying decisions by the sport movement, according to the Council ofEurope’s European Sport Charter, which is the reference point for the develop-ment of sport policies.

Aware of the difficulties arising in the absence of a common and harmoniousperception of the concept of sports autonomy, the Enlarged Partial Agreementon Sport (EPAS) invites the 11th Council of Europe Conference of Ministersresponsible for Sport to acquaint itself with EPAS’ work and to discuss thequestion of sports autonomy.

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Appendices

The situation in EPAS member states

In May 2008, the EPAS Secretariat, as proposed by France, distributed tosports authorities in the 25 EPAS member states, both governmental (ministries,state secretariats, etc.) and non-governmental (sports confederations, nationalOlympic committees) a questionnaire on autonomy in sport in Europe. Thequestionnaire covered five dimensions:1. conceptual: interpretation of what is meant by “autonomy”;2. political: frequency and circumstances of references to autonomy by

political and sports officials;3. legal: references to autonomy in legislative and regulatory texts;4. financial: interpretation of the concept of financial autonomy for the

sports movement;5. psycho-sociological: perception of the degree of autonomy of the sports

movement.

By 1 August 2008, replies had been received from the public authoritiesresponsible for sport in almost all 25 EPAS member states, as well as fromsome countries not currently members. The total was 26 replies, 80% ofwhich had come from EPAS members. At that same date, six internationaland European sports federations had replied, as had four national Olympiccommittees (NOCs), six sports confederations and several national feder-ations, totalling 23. The low number of replies and the disparity betweenthe respondent sports organisations mean that representative findings cannotbe extrapolated, but a qualitative analysis of the replies does reveal sometendencies.

On the conceptual level, the replies showed that few public sports authoritiesoffered a definition of autonomy. The concepts most frequently associatedwith autonomy were independence, sports organisation/sports movement,democracy, freedom and self-governance.

The idea most frequently cited by sports organisations was that of independ-ence from governments and from national or supranational political author-ities. Such independence, however, was not taken to entail hermetically sealedpartitioning, for major international federations wished for more consultationwith public authorities.

On the political level, references to sports autonomy were found to have beenmade during the past year in government statements or official documents inalmost two-thirds of respondent countries, without any correlation betweengovernments’ political leaning and the frequency of statements. Thus thesubject does seem to be on Europe’s “political agenda”.

Half of respondents from the sports movement said that the question ofautonomy in sport had been mentioned in their officials’ statements during

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the previous 12 months. Several organisations referred to the relevant workof the International Olympic Committee (IOC) or NOCs. Finally, some sportsorganisations expressed regret that the EU White Paper on Sport had notsaid more about the question. These few indications confirmed the currencyof the subject.

On the legal level, while half of responding states had a constitution whichreferred to sport, it was rare for sports autonomy to be mentioned. On theother hand, in approximately half of the countries where a law on sportexisted, that law mentioned the autonomy of the sports movement, and it veryoften contained a legal definition of that autonomy. In spite of these divergentreplies, virtually all public authorities took the view that the sports movementin their country was legally autonomous.

Among representatives of the sports movement, virtually all respondents saidthat the sports movement was legally autonomous in their country or in Europe.Most said that it would be useful for a definition of autonomy to be given in therules governing sport at national or European level. Such a reference wouldusefully supplement the texts on autonomy in half the respondent countries.Some major international and European team sport federations said that legalautonomy was threatened by the European capacity to harmonise certainrules internationally, on the basis of public international law or Communitylaw, sometimes leading to transfers of powers from the sports movement topublic authorities. Consequently, this concept of legal autonomy needed tobe defined Europe-wide, so as to strike the right balance.

On the financial level, all respondent states gave their sports movementfinancial support, without which, in most cases, it would exist on a far moremodest scale. According to the public authorities in three quarters of respond-ent states, however, this assistance did not compromise the sports movement’sfinancial autonomy. States nevertheless controlled the funds made availablewith a greater or lesser degree of sophistication, with the exception of a fewcountries which did not exercise any control.

All the respondent sports organisations acknowledged that the governmentprovided sport with financial support and, in most cases, gave instructionsas to the use of these subsidies. Most sports confederations took the viewthat the sports movement could not survive without public funding. Severalorganisations emphasised the need to generate their own resources moreautonomously, particularly through commercial or television rights. UEFAnevertheless said that strong financial autonomy, if it was the result of extremecommercialisation of sports organisations (particularly clubs), could also havethe effect of reducing national and international sports organisations’ auton-omy. The pursuit of profit could in fact be to the detriment of social objectivesand of the development of sport which was the aim of the sports movement.

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On the psycho-sociological level, three quarters of the countries which repliedsaid that their sports movement was autonomous, the other quarter consider-ing that it was only partly so. The public authority in a few countries consid-ered that sport was not autonomous at all, while one government said thatits sports movement was too autonomous.

Most sports organisations described their own degree of autonomy as some-where between “complete autonomy” and “partial autonomy”, especially inrespect of financial aspects. Some of them emphasised that financial autonomywas not their aim, particularly in respect of the building and running of sportsfacilities: it was only autonomy in terms of governance that they demanded.

A historical study shows that the autonomy of the sports movement has sufferedon several occasions in recent years. An analysis of the replies submitted tothe questionnaire, however, gives a clearer view of the situation. They revealthe diversity of the approaches taken to the subject of autonomy. The greatmajority of sports organisations and public authorities responsible for sport inEuropean states do not regard autonomy as under threat, other than, to a cer-tain extent, financially. Furthermore, the international federations (IFs) whichreplied complain of a lack of legal autonomy, mainly vis-à-vis Community law.

An attempted definition

Having analysed the references made to the concept of autonomy, and onthe basis of the replies submitted to the questionnaire and a study of thedisputes that have arisen, and noting that no attempt has ever been madeby any international organisation to offer a definition, the EPAS proposes torefer to the draft definition below in future discussions.

The autonomy of sport is, within the framework of national and internationallaw, the possibility for non-governmental non-profit-making sports organi-sations to:

1. establish, amend and interpret rules appropriate to their sport freely,without undue political or economic influence;

2. choose their leaders democratically, without interference by states orthird parties;

3. obtain adequate funds from public or other sources, without dispro-portionate obligations;

4. use these funds to achieve objectives and carry on activities chosenwithout severe external constraints;

5. in consultation with the public authorities, contribute to the drafting oflegitimate standards proportionate to the fulfilment of these objectives.

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This definition is intended to be applied to non-profit-making non-governmentalsports organisations such as the International Olympic Committee (IOC),international federations (IFs), European federations, national and regionalfederations and sports clubs, all private entities legally independent of pub-lic and commercial authorities. Such organisations regulate sport in Europeand worldwide, and therefore aspire to have their autonomy recognised innational, European and international law. It is, on the other hand, inconceiv-able to absolve these organisations from the obligation to comply with thegeneral and objective rules which, in the context of the rule of law, applyto all subjects of law. It is nevertheless desirable to recognise, for the sportsmovement as for other communities (particularly religious ones), a form oftransnational legal organisation which relieves states of concerns which arenot among their prime responsibilities, and which, in accordance with theprinciple of subsidiarity, can be more appropriately dealt with by organisa-tions closer to the persons concerned.

The possibility freely to establish, amend and interpret rules appropriateto their sport, without undue political or economic influence

This aspect of autonomy relates firstly to the freedom to adopt, amend andinterpret “rules of sport”, meaning the rules of the game, competition rulesand club rules. Such rules, which underpin sports activities, must be adoptedfollowing consultation of the interested parties by the bodies created underthe statutes for this purpose, and must be in accordance with public policyand the general principles of law. They must also be interpreted firstly byimpartial judges or referees/umpires at sports venues, and subsequently bytransparent disciplinary bodies, against whose decisions appeals may bemade to arbitration bodies, in so far as these are allowed by the domesticlegislation in force, or to national courts, in cases which are required to bedealt with by national courts. The autonomy of sport therefore encompassesself-regulation by sports organisations, namely the production and supervisionof their own rules concerning first and foremost their members.

The possibility to choose their leaders democratically, without interferenceby states or third parties

Here it is the importance of the democratic appointment of sports clubs’ lead-ers at every level that is underlined, since cases of interference by local ornational government are regularly reported. No influence should be broughtto bear by third parties (media, sponsors, investors, etc.), which must be keptout of the election of such officials. Autonomy also requires holding regularelections which are representative of the stakeholders, in accordance withthe principles of good governance. Rules should be drawn up making certainpublic offices incompatible with certain posts in sport, so that organisations’independence goes hand in hand with that of their leaders.

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The possibility to obtain adequate funds from public or other sources,without disproportionate obligations

This aspect relates to financial autonomy, emphasising that there is no trueautonomy unless access is possible to financial resources. Such resources,however, whether they come from the public or the private sector, must notbring with them major constraints for sports organisations. If we view thematter from this angle, it would be interesting to apply the concept of aconsideration to be supplied by sports organisations to the public authoritieswhich subsidise them, as in the context of sponsorship contracts. Such aconsideration may be set out in agreements on objectives or in similar docu-ments. Self-regulation of the sports sector in accordance with the principlesof good governance is already in itself a worthwhile consideration for thepublic sector, which is thereby relieved of non-sovereign duties.

The possibility to use these funds to achieve objectivesand carry on activities chosen without severe external constraints

This suggestion contrasts with the previous aspect, emphasising the importancefor sports organisations of setting themselves objectives and carrying out(sports) activities without being used as instruments by their public or privatesources of funding. The autonomy of sport must make it possible to pursuepurely sporting objectives, especially in terms of the development of the sportitself and its practitioners. Interference is sometimes political, but commercialinfluence, as exerted when the rules of the game are altered to make a sportmore telegenic, should not be overlooked. And it is precisely such media andcommercial interests which have caused the intrusion into sport of Communitylaw. The role of sponsors, media, investors in sport, etc., should not thereforebe overlooked when we defend sports autonomy.

The possibility, in consultation with the public authorities, to contributeto the drafting of legitimate standards proportionate to the fulfilmentof these objectives

Finally, autonomy can clearly arise out of co-operation, co-ordination, consult-ation, and even negotiation between the parties far more than if the differentparties ignore each other. This is true at local, as at national, level. It deservesto be even more true at European level. It echoes the first aspect, for, afterconsultation and the adoption of soft law instruments by the public authorities,the rules of sport can be amended with a view to avoiding legal disputes.

Conclusion

It can be said that autonomy is one of the fundamental criteria for a modernmodel of sports organisation, and as one of the features of the Europeansport model. There is good reason for the public authorities to recognise the

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autonomy of the sports movement, for autonomy allows it to organise betterwithin the context of its federations than it could under the leadership of thepublic authorities, so as to offer sports activities to the public and therebycreate the public benefits expected of it (public health, education, socialintegration, etc.). This is a praiseworthy principle, which is socio-economicallyjustifiable in developed societies. Today, however, this principle clashes withthe increasing complexity of the international and Olympic systems and withthe growing economic dimension of sport, which unquestionably facilitatesits financial autonomy, but also entails new risks due to the involvement ofthird parties (sponsors, media, investors, gamblers, and so on).

Faced with a changing environment, sports organisations and states mustcontinue their dialogue in order to define the concept of autonomy, while bear-ing in mind the fact that this model will have to be applicable in varying situ-ations. At European level the Council of Europe could very well be theappropriate intergovernmental organisation within which to discuss andimplement such a model, since its geographical scope and its membershipin practice coincide with those of European federations and confederationsfor the various sports.

The ministers are invited to discuss a few questions connected with auton-omy in sport:– How are the expectations of the sports movement to be reconciled

with the public authorities’ approach to sport?– In view of the diversity of approaches and practices, is it possible

to adopt a recommendation in support of autonomy for the sportsmovement?

– Which good practices could be promoted in order to uphold andstrengthen the autonomy of the sports movement?

Resolution No. 2 on autonomy in sport

The European ministers responsible for sport, meeting in Athens for their11th conference:– Convinced of the need to determine the fundamental principles that

should be incorporated in a general policy for autonomy of the sportmovement;

– Conscious of the substantial work done previously by the Committee forthe Development of Sport (CDDS) in developing policies designed topromote in practice the autonomous functioning of the sport movement;

– Remembering the conclusions relative to autonomy as represented inResolution 1602 (2008) 1 “The need to preserve the European sportsmodel” adopted on 24 January 2008 by the Parliamentary Assemblyof the Council of Europe;

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– Aware that the concept of autonomy of the sport movement covers dif-ferent realities depending on cultures and organisational models andwishing to respect this diversity;

– Welcoming the work done in Europe to prepare position papers andstudies on autonomy in sport, whether at the initiative of governments,international organisations or the sport movement;

– Considering that non-governmental sports organisations (whether atinternational, European or national level) are key players for the develop-ment and continued survival of democratic sport, and also make a uniquecontribution to the realisation of societies based on the rule of law, plu-ralist democracy and respect for human rights − which are the guidingprinciples of the Council of Europe;

– Reaffirming their commitment to the principles of good governance insport and reiterating that the implementation of principles such as democ-racy, accountability, fairness, solidarity and transparency is key to wid-ening the popularity of sport and strengthening the position of sportsNGOs in civil society;

– Note with satisfaction the research conducted in the context of theEPAS concerning the autonomy of sport in Europe;

– Consider the proposed definition to be a useful contribution to thepolitical debate on autonomy of sport;

– Invite the EPAS to expand its research on autonomy to all memberstates of the European Cultural Convention of the Council of Europeand to complete it with examples of good practice, with a view to itspublication in paper and electronic version;

– Invite countries and sports organisations which have not yet doneso to complete the questionnaire on autonomy in sport so as to helpbroaden this study;

– Reiterate their view that as part of the autonomy of sport, the specificfeatures of sports should be properly taken into account when law(international, European or national) is applied on sporting issues;

– Suggest to the EPAS that the joint meetings between the public authori-ties and the sport movement be used to discuss:- the various positions on the question of autonomy;- subjects of dispute;- the possibility of promoting, at European level, a definition of

autonomy;- potential operational indicators specifying this definition, making

it possible to analyse and discuss practices;

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– Welcome the invitation of the Czech Republic, in the framework ofits European Union presidency, to co-operate in future works on theissue of autonomy.

Athens, 10-12 December 2008

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Appendix 3: Chronological studyof the Olympic Charter and a selectionof documents issued by sports organisationswith regard to the concept of autonomy(Particular references to the concept of autonomy are in italics.)

Documents from the IOC

1946: Olympic Charter – No reference to the notion of autonomy

“National committees must be constituted so as to include representatives ofthe national governing bodies as well as the members of the InternationalOlympic Committee of that country.”

1949: First appearance of the notion of autonomy in the Olympic Charter

“Article 25: A National Olympic Committee recognized as such by theInternational Olympic Committee must fulfil the following requirements: Itshould include in its organization representatives of all national governingbodies in that country whose sport is included in the Olympic Program, itmust include among its members the Members of the International OlympicCommittee of that country, it must recognize not more than one body orassociation in its own country as the National Governing Body of a sportwhich is the body recognized by the International Federation of that Sport,it shall be the official for all Olympic matters in its own country. All arrange-ments concerning its taking part in the Olympic Games and all communica-tions on such matters shall be addressed to it. It must be independent andautonomous.”

1955: Olympic Charter – Direct reference to the notion of autonomy

...

“Article 24: National Olympic Committees must be completely independentand autonomous and entirely removed from political, religious or commercialinfluence. Because of the importance of National Olympic Committees whichare in complete charge of the Olympic Movement in their countries, greatcare must be exercised in choosing members, who should be men of goodstanding, upright character, sound judgment, independent mind, and aknowledge and belief in Olympic Principles.”

1956: Olympic Charter

“Articles 24 and 25: National Olympic Committees must be completelyindependent and autonomous and entirely removed from political, religiousor commercial influence.”

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“Article 24: Because of the importance of National Olympic Committeeswhich are in complete charge of the Olympic Movement in their countries,great care must be exercised in choosing members, who should be men ofgood standing, upright character, sound judgment, independent mind, anda knowledge and belief in Olympic Principles...

Article 25: National Olympic Committees must be completely independentand autonomous and entirely removed from political, religious or commercialinfluence.National Olympic Committees that do not conform to the Rules andregulations of the International Olympic Committee forfeit their recognitionand consequently their right to send participants to the Olympic Games.”


“Article 25: National Olympic Committees must be completely independentand autonomous and entirely removed from political, religious or commercialinfluence. National Olympic Committees that do not conform to the Rules andregulations of the International Olympic Committee forfeit their recognitionand consequently their right to send participants to the Olympic Games.”


Similar text as in Olympic Charter 1962. See Article 10, Recruitment of IOCmembers:

“Members of the IOC will not accept from governments, organizations, orother parties, any mandate or instructions liable to interfere with the freedomof their action and vote.”

1968: Model constitution for National Olympic Committees (this modelconstitution was prepared and drafted as a guide for NOCs)

“Article VI, General Provisions: Number 4: It is the duty of the members ofthis Olympic Committee, when there is no member of the International OlympicCommittee in the country, to report to the International Olympic Committee,in the event of any regulation or actions of this Committee conflicting withInternational Olympic Committee Rules or of any political interference in itsoperations.

The President of the International Olympic Committee has the power to appointa member from another country to investigate and report.”

“Number 5: National Olympic Committees must be completely independentand autonomous and entirely removed from political, religious or commercialinfluence to conform to the Rules and regulations of the IOC.

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National Olympic Committees that do not conform to the Rules and regula-tions of the International Olympic Committee forfeit their recognition andconsequently their right to send participants to the Olympic Games.”


“I. Fundamental principles 7: Only citizens of a country or area in which aNational Olympic Committee recognized by the I.O.C. operates, are quali-fied to participate in the Olympic Games under the colours of that countryor area. Recognition of a National Olympic Committee in such a country orarea: 1. Does not imply political recognition. 2. Is dependent on the countryor area having had a stable government for a reasonable period.

II. The IOC – Recruitment 11: Members of the IOC represent and promotethe interests of the IOC and of the Olympic Movement in their countries andin the organizations of the Olympic Movement in which they serve. Membersof the IOC will not accept from governments, organizations, or other parties,any mandate or instructions liable to interfere with the freedom of their actionand vote.

III. NOCs – Article 24 paragraph 4: National Olympic Committees must notassociate themselves with affairs of a political or commercial nature.

Article 24 paragraph 11: Governments or other public authorities shall notdesignate any members of an NOC.

... In case the acts or regulations of a National Olympic Committee might bein contradiction with the Olympic Rules, or might be the object of any politicalinterference, the IOC Member of that country must address a report on thesituation to his president in order to take appropriate measures.”

“Article 25: National Olympic Committees must be completely independentand autonomous and must resist all political, religious or commercial pres-sures. National Olympic Committees that not conform to the rules and regu-lations of the International Olympic Committee forfeit their recognition andconsequently their right to send participants to the Olympic Games.”


“III. Article 24. C. Autonomy: NOC must be autonomous and must resist allpressures of any kind whatsoever, whether of a political, religious or economicnature. In pursuing their objectives, NOCs may co-operate with private orgovernment organizations. However, they must never associate themselveswith any undertaking which would be in conflict with the principles of theOlympic Movement and with the Rules of the IOC.”

“Bye-Law number 11: Governments shall not designate any member of anNOC...”

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“Bye-Law number 13 to Rule 24: NOCs are recommended: to raise funds toenable them to maintain their full independence, in particular from the govern-ment of their country or from any other organization that controls sport in thecountry. Fund raising must however be undertaken in a manner that preservesthe dignity and independence of the NOC from commercial organizations.”

2002: Establishment of the IOC International Relations Commission

“The International Relations Commission was established in 2002, with amandate to facilitate and promote the relationship between the OlympicMovement, particularly the International Olympic Committee (IOC) andNational Olympic Committees (NOCs), and governments and public author-ities. It uses the network of relations and expertise of its members, who haveall had, or currently hold, a political function in their respective country orregion at different levels, to strengthen existing dialogue and co-operation,and to contribute to resolving conflicts when possible. Although independentand autonomous, the IOC, NOCs and IFs have worked for the establishmentof strong partnerships with governments to ensure the coherent and long-termdevelopment of sport world-wide.

In this framework, the Commission supports the communications efforts madeby the IOC in providing information on its policies, actions and mandatewith respect to governments, as well as international, regional and nationalgovernmental organisations. It also prepares position papers on specific polit-ical issues related to sport and advises the IOC President and the ExecutiveBoard accordingly. It works in close co-operation with the IOC Departmentof International Cooperation and Development and the Department of NOCRelations. The Commission meets once a year.”


“Article 16: Members: 1. Composition of the IOC: 1.5 Members of theIOC will not accept from governments, organizations, or other parties, anymandate or instructions liable to interfere with the freedom of their actionand vote.”

“Article 28: Mission and Role of the NOCs:

Number 5: In order to fulfil their mission, the NOCs may co-operate withgovernmental bodies, with which they shall achieve harmonious relations.However, they shall not associate themselves with any activity which wouldbe in contradiction with the Olympic Charter. The NOCs may also co-operatewith non-governmental bodies.

Number 6: The NOCs must preserve their autonomy and resist all pressuresof any kind, including but not limited to political, legal, religious or economicpressures which may prevent them from complying with the Olympic Charter.”

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“Article 29: Composition of the NOCs: Number 4: Governments or otherpublic authorities shall not designate any members of an NOC. However,an NOC may decide, at its discretion, to elect as members representativesof such authorities.”

“Bye-Law number 3.4 to Rule 29: It is recommended that NOCs: seek sourcesof financing in a manner compatible with the fundamental principles ofOlympism.”

Documents from sports organisations other than the IOC

27 March 2003: UEFA press release “Associations want legal framework”

“Europe’s national football associations have adopted a resolution callingfor a firm legal framework for sport in future European Union legislation.

Unanimous acceptance

The resolution was adopted unanimously by the 52 UEFA member associ-ations at the XXVII Ordinary UEFA Congress in Rome on Thursday, followinga speech by Per Ravn Omdal, UEFA vice-president and president of theNorwegian Football Association.

Legal recognition

In his speech […] Mr Omdal said that UEFA’s objective was to enshrine thelegal recognition of the specific nature of sport in a future EU Treaty, and toprotect the autonomy of European sport’s governing bodies. This is to enablethem to do their job properly, free from unnecessary interference from polit-ical authorities at national and European level.

Key principles

The Congress resolution gave support to key principles promoted by UEFA,such as solidarity and links between football’s élite and grassroots, educationand training of young players, integrity of competitions, the fight againstracism and drug abuse, and protecting the specificities of sport and theautonomy of governing bodies.

New challenge

‘The new challenge we face today concerns the legal basis of sport in theEU Treaty,’ said Mr Omdal, ‘As we speak, the Convention on the Future ofEurope has already begun drafting the EU’s new Constitutional Treaty, whichEurope’s leaders will be debating throughout 2004 and perhaps beyond.Part of this Treaty could potentially contain a new legal basis for sport – it isno exaggeration to say that the outcome of the discussions and the nature ofthe final text may have profound implications for the future of sport in Europe.’

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Clear, stable and consistent

Mr Omdal explained that the aim of UEFA and its associations was a legalframework in the new EU Treaty that was clear, stable and consistent, whichshould give a firm legal base to the principles set out in the Nice Declarationissued by European heads of state in December 2000.

[Greater] legal certainty

‘This is not about obtaining an exemption from EU or national law,’ he said.‘We are not, and should never be above the law. What we do need is agreater legal certainty. The good and proper running of football demands aproper framework for sport in EU law.’ UEFA’s working group on EU mattershas held a number of high-level meetings with EU ministers and officials inrecent months to put over the European body’s point of view, and Mr Omdalsaid that the ministers had been sympathetic to UEFA’s arguments.

Vital contribution

‘Our efforts will not cease until we have achieved our aims,’ Mr Omdalstressed to the associations. ‘Over the coming weeks, we can all make a vitalcontribution to the discussions in the European Convention and in our nationalgovernments. UEFA’s 52 members give us the political legitimacy and theability to approach every member of the European Convention, as well asevery EU member state − old and new.’

Important step

UEFA will be contacting its member associations in the coming days to informthem how each country could make an individual contribution at nationallevel to achieving the European body’s objective. ‘Now is the moment whenthe European Convention will be drafting the new Treaty provisions relatingto sport,’ said Mr Omdal. ‘The resolution is an important step in our campaignto give sport in Europe a better legal base for the future’.”

2 July 2003: Statement by UEFA Chief Executive Officer Gerhard Aigner

“The specificity of sport, which distinguishes it from other types of economicactivity, and the autonomy of governing bodies need to be protected. At themoment EU law is not providing the right legal framework.”

April 2005: UEFA, Vision Europe

“3.1.2 European Football – Governance and structures

A future legal environment and sports-law jurisprudence shaped by UEFAand the values of European football, leading to legal certainty and full judicialrecognition of the autonomy of sports structures and the specificity of sport.

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…

Football is able to work in different legal contexts as long as the autonomyof the football movement and its structures is respected.

…

UEFA believes that the football structures should be constructed, as much aspossible, with properly functioning, clean democracies including consultativestructures open to all key stakeholders. In order for the football family tojustify both its autonomy and the specificity of sport, and to maintain ourlegitimacy as governing bodies, we need properly functioning clean democ-racies with transparent principles.

…

6.1.6. Political intervention in football

Selected option: UEFA and the member associations to work towards fullindependence and autonomy for the football family. A formal policy shouldalso be elaborated in order to:– ensure members are treated in the same way;– identify certain types of political intervention/influence as clearly

prohibited;– identify other types of intervention/influence to be treated on a case by

case basis, taking into account the request of the member associationconcerned;

– ensure that any actions are well co-ordinated with FIFA; and– to recognise that the political authorities also play an important role as

a partner in supporting European sport/football.

Rationale: It is important that all members are treated in the same way whencases of political intervention occur.

In addition to the above actions, the adoption of standard statutes by memberassociations should assist the situation, as should increased transparency,accountability, absence of corruption, democracy and solidarity as discussedelsewhere.”

28 April 2005: FIFA Press Release – FIFA and IOC discuss commonground.

...

“Both Presidents considered their joint efforts for the autonomy of sport andprotection against governmental interference to be very important. In recentyears, FIFA has noted that such interference occurs increasingly in an evermore sophisticated manner. The IOC and FIFA deem it crucial to continue

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and reinforce their co-operation for the preservation of sports autonomy witha view to convincing other international federations to join them in theirefforts.”

2006: Independent European Sport Review

Direct and indirect references to the concept of autonomy.

2-5 April 2006: The XV ANOC General Assembly that met in Seoul,capital city of the Republic of Korea, adopted the following resolution

...

“4. Relations between NOCs and governments

4.3. To maintain a firm position in the defence of the National OlympicCommittees’ independence and autonomy, facing up to any type of inter-ference or intervention on the part of governmental sports authorities whichwould go against such independence and autonomy.”

20 September 2006: Common statement by certain European team sportfederations

“European CommissionWhite Paper project on sport welcomed. The Europeanteam sport federations of football (UEFA), basketball (FIBA Europe), handball(EHF), ice hockey (IIHF) and volleyball (CEV) have today met in Brussels todiscuss important matters related to the future of European sport and issuedthe following statement:

“1. The team sport federations welcome and support the IndependentEuropean Sport Review as a concrete expression of how to implement thecontent of the Nice Declaration on the Specific Characteristics of sportapproved by the EU Heads of State in 2000 and the Amsterdam TreatyDeclaration on sport from 1997.

2. Sport is a social expression – not a business like any other – and fulfilsa unique social, educational and cultural role which benefits society as awhole.

3. The European Sports Model, including the pyramid structure and as definedin more detail in the Independent European Sport Review, is currently underthreat and must be preserved.

4. The autonomy and independence of sports governing bodies, underpinnedby good governance, to manage their own sports are crucial for the futuredevelopment of sport in Europe.”

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21-22 September 2006: Resolutions of the first seminar on the autonomyof the Olympic and sport movement

“Meeting in Lausanne on 21 and 22 September 2006, representatives of theIOC led by their President, representatives of the International Olympic SportsFederations led by the ASOIF and AIOWF Presidents, representatives of theNOCs from throughout the world led by the ANOC President, as well asrepresentatives of the ARISF, GAISF and IPC agreed:

…3. To underline that the autonomy of the Olympic Movement and all itsconstituents is essential in order to guarantee the preservation of its inherentvalues, all of which are at the service of improvement of individuals andsociety in general; of particular importance is to protect the integrity of sportcompetition. This is why all the attending organisations will strive to ensurethe best possible maintenance of these principles, which should provide fortheir increased efficiency, better service to society and good governance.

4. To emphasise that nowadays the development of sport necessarily resultsin collaboration with governments and supranational governmental organisa-tions, the role of which is fundamental. The Olympic Movement desires fulland harmonious co-operation with these associations based on the mutualrespect of the autonomy of the respective structures and organisations...”

28 September 2006: FIFA media release, “Full FIFA supportfor resolutions of IOC seminar on sports autonomy”

“FIFA wishes to stress its full support for the resolutions adopted during theFirst Seminar on the Autonomy of the Olympic and Sports Movement, held on21-22 September in Lausanne and attended by IOC President Jacques Rogge,representatives of the international federations of 28 out of the 35 Olympicsports (in most cases the Presidents), 22 National Olympic Committee leadersand several IOC members.

The autonomy of sport is essential in order to preserve the integrity of allcompetitions and the values of solidarity and democracy within the sportingworld. We must avoid the interference of external influences which often haveinterests other than the purely sporting ones, whether economic, political orcountless others,’ indicated FIFA President Joseph S. Blatter, the keynotespeaker during the opening of the seminar.

‘But we must also note that this autonomy brings with it the obligation forgood governance by the sporting authorities, promoting transparency andopen-mindedness. In order to find the best solutions, we need dialogue andco-operation with all the parties involved, especially with governmentalauthorities, always respecting the mutual competences of each entity,’ headded. The action plan and resolutions adopted during the meetings can beviewed on the official website of the International Olympic Committee (IOC).”

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18 October 2006: FIFA media release, “Unanimous appeal to defendthe autonomy of football”

“Meeting in Zurich today (18 October 2006) under the chairmanship ofDr. Viacheslav Koloskov (Russia), the FIFA Associations Committee launcheda vigorous appeal for international solidarity to defend the autonomy of sportand particularly football.”

20 October 2006: UEFA media release,“UEFA backs final Independent European Sport Review.Revised review launched at European Sports Ministers meetingin Moscow”17

“UEFA has today fully endorsed, and repeated its commitment to, the finalisedIndependent European Sport Review (Independent Review) at its launch todayat a meeting of 49 European Sports Ministers in Moscow.

This final report has taken into account feedback received from key stake-holders, following the original launch of the Independent Review at the endof May of 2006, and is a significant step forward in the European dialogueon the future of sport.

Speaking in Moscow UEFA President, Lennart Johansson, said: ‘The work ofthe Independent Review is to be welcomed and will help football face thechallenges ahead. The final report represents a significant step forward inthe European dialogue on the future of sport and offers a real opportunity togain proper recognition for the specificity of sport.’ Sport, and football inparticular, faces turbulent times. In football, wealth is steadily being concen-trated in the hands of a minority, there is a lack of financial transparencywithin parts of the game, clubs and individuals are increasingly challengingsporting rules and governing bodies in the law courts and sporting values asa whole are under threat.

Sports governing bodies therefore need legal certainty to address these keyissues. If they are unable to set the rules of the game, sport will become afree-for-all where the richest can buy success. To counter this trend UEFA isconvinced that as the governing body of European football it must seek towork hand-in-hand with the appropriate political bodies. For European prob-lems we need European solutions, which is why UEFA is seeking a partnershipwith the EU to assist in tackling these issues. Sport is not above the law andits governing bodies must respect the law of the land, but our governmentsand regulators should recognise sport’s specificity. Sport is unlike any other

17. This press release should be read in conjunction with the press release of 23 October 2006in the French version of this publication.

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economic activity and does not operate to ‘normal’ commercial rules. Infootball the very basis of the leagues and competitions could not exist withoutother teams taking part: competing teams need each other, and they all havean interest in the unpredictable nature of the sport. This explains the autonomyof European sport. It is a massive social movement that has organised itselffrom the very beginning.

However, to earn this autonomy sports bodies must provide good govern-ance, work for the good of all stakeholders and adopt measures to promotecompetition on the field of play. In football these include a licensing systemto ensure financial transparency, central marketing of media rights, redistribu-tion of revenues down to the grassroots, relegation and promotion betweenleagues and rules to encourage training of young players. UEFA has adoptedall of these policies in recent years.

The European sports model, a pyramid where the money from the elite at thetop trickles down to feed the grassroots at the bottom, is at stake here. UEFAfully believes that the Independent Review offers a way forward on all theseissues and can contribute to the future well-being of European sport andfootball in particular.”

9 May 2007: Joint statement by UEFA and the European governing bodiesof basketball, handball and volleyball defending the existing modelof sport in Europe

“Recent and upcoming EU court cases could have a very damaging effecton all sports across Europe. These cases could effectively hand the definitionof sports rules from sport itself to the judges in the European Court of Justice.Sport, including its social, educational and cultural features, would risk beingtreated exactly like any profit-making business.

…

European sport is not asking for an exemption from the law or to be abovethe law.

European sport is, however, asking the EU, after more than 30 years of casesand challenges, to finally provide the necessary legal certainty and stability– which will not exist until there is a clear legal recognition of the specificityof sport.

…

We believe that the overwhelming majority of sports fans across Europe wantto see competitive and balanced competitions. They want to see strongnational team competitions as well as exciting club competitions. They wantto see local young talent being developed and given a chance. They want

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to see promotion and relegation and no breakaway leagues. They do notwant their sport to be run by businessmen and judges.

…

In conclusion, the European team sports reiterate their support for the EUWhite Paper on Sport, provided that it fulfils its original purpose – namely tooutline concrete measures to implement the Nice Declaration.”

23 May 2007: Article from UEFA website, “European Sports Model Study”

“The Strasbourg-based Council of Europe is to launch a study into the EuropeanSports Model, and discuss the need to preserve this model within the modern-day sports environment.

Motion for a resolution

The study follows a motion for a resolution presented to the Council’sParliamentary Assembly by, among others, José Luis Arnaut, the seniorPortuguese politician who chaired the Independent European Sport Reviewwhich was issued last year, and which put forward a series of crucial recom-mendations for the well-being of football in Europe.

Deeply rooted

The motion argues that the European Sports Model is deeply rooted inEuropean civil society and is an important expression of our culture andattitude towards sporting values. It is, the motion says, a democratic modelthat serves to ensure sport remains open to everyone – the model resemblesa pyramid structure, with grassroots and clubs constituting the base of thepyramid and offering maximum scope for local participation.

Twin principles

The motion explains that European Sports Model, based on this pyramidstructure, is underpinned by the twin principles of financial solidarity andpromotion and relegation. It adds that sport has a specific nature that sets itapart from any other field of business activity. ‘Sport has important social,educational and cultural functions. It recognises that solidarity between dif-ferent levels in sport (in particular, between professional and amateur) is afundamental aspect of sport,’ the motion says.

The motion quoted in UEFA’s news article goes on to say: ‘The independentnature of sports bodies should be supported and protected and their autonomyto organise the sport for which they are responsible should be recognised.The federation should continue to be the key form of sporting organisationproviding a guarantee of cohesion and participatory democracy.’”

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15 June 2007: Joint statement of UEFA and the European governingbodies of basketball, handball and volleyball to defend the existing modelof sport in Europe

“We have been able to read a draft of the White Paper and the principalreaction is one of deep disappointment. We have discovered a lengthydocument that simply describes the current situation but unfortunately adoptsa very timid and indecisive attitude towards the key issues. The draft addressesneither the autonomy of sport, nor implementing legal stability in sport, norany co-operation in addressing criminal issues in society which may findexpression through sport.”

11 July 2007: Joint statement by the IOC and FIFA –European Union White Paper on Sport: Much work remains to be done

“The Olympic and sport movement acknowledges the publication of the EUWhite Paper on Sport. They note that, whilst the concept of a White Paperon Sport was to be welcomed, the content of the final version represents– unfortunately – a missed opportunity.

The White Paper is structured in full contradiction with the actual architectureof the Olympic movement, ignoring in particular the regulatory competencesof the International Federations, the division of responsibilities between thelatter and their European Confederations, the global nature of the issues andchallenges currently affecting sport as well as the solutions which are todaynecessary.

As sports governing bodies at world level, we are all committed to the protec-tion of fair and open competition, to the promotion of athlete and playereducation and training, to the maintenance of competitive balance, and tothe need to protect the integrity of our respective sports. These are all keyfeatures of the European sports model and we would like to see the EuropeanCommission work alongside us to defend and nurture this model of sport – notjust for the future development of sport but for the benefit of society as awhole.

Whilst the White Paper contains certain positive elements (regarding, forexample, the recognition that national teams play an essential role across allsports in terms of identity and financial solidarity), we are disappointed thatthe EU has not reached firmer conclusions with regard to some of the keyissues facing sport today, thus contributing to its future healthy development.

It was in particular expected that theWhite Paper would give concrete expres-sion to the Nice Declaration including providing sport with a more stablelegal environment for the future, fully recognising both the autonomy andspecificity of sport as well as the central role and independence of the sportsfederations (governing bodies) in organising, regulating and promoting their

102


respective sports. Concretely, there needs to be a clearer legal environmentas regards the scope of regulatory discretion for sports governing bodies insports-related matters.

Looking forward however, we will continue to co-operate with the EU MemberStates, the European Parliament and the Commission, with particular atten-tion to the appropriate inclusion of sport in the Reform Treaty to be debatedand finalised by the inter-governmental conference. Much work remains tobe done.”

5October 2007: IOC press release “IOC optimistic about seeing articleon sport strengthened in the EU Reform Treaty”

“The International Olympic Committee (IOC) welcomes the discussions thatwill be held in the coming days in Brussels surrounding the role of sport withinEurope. These discussions are important steps towards the draft of a reformtreaty agreed upon by the 27 Member States of the European Union (EU)last June.

This new project offers a great opportunity to strengthen the role of sport inEurope and the structures through which it performs. Sport is the biggestsocial movement in the EU and plays a key role in the fields of integration,education and health. The IOC is convinced that the creation of a legal basisfor sport in the EU Reform Treaty would better address the needs of sport andprovide a sound legal framework for the future.

‘The responsibility sport has in society and the autonomy with which it regu-lates itself are central to its credibility and legitimacy’, said IOC PresidentJacques Rogge. ‘Autonomy thus means preserving the values of sport andthe existing structures through which it has developed in Europe and aroundthe world. Sport can play its unique role thanks to its autonomy, and this rolewould be seriously compromised if sport-governing bodies are subject topublic interference. Therefore the IOC and the sports movement as a wholehope that this aspect will be taken into consideration’, he added.”

February 2008: Resolution of the second seminar on the autonomyof the Olympic and sports movement

“1. To welcome this Second Seminar for the breadth and depth of the contribu-tions made by the entire Olympic and Sports Movement, thus demonstratingour abiding interest in this subject and our commitment and unity in address-ing it as a priority.

2. To reiterate that the Autonomy of the Olympic and Sports Movement isessential for the development of sport and the promotion of its values, for thebenefit of all athletes.

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Appendices

3. To express the will of the Olympic Sports Movement to co-operate andwork together with governments and international institutions within a frame-work of mutual respect, to make sport and its benefits available to all citizensof the world.

4. To evaluate the evolution of the Autonomy of sports organisations during thelast 18 months, recognising the significant contribution made by all membersof the Olympic Movement, while acknowledging a number of specific casesof serious interference which prove that this principle is not yet universallyaccepted.

5. To emphasize Good Governance as the fundamental basis to secure theAutonomy of Olympic and Sports organisations and to ensure that thisAutonomy is respected by our stakeholders.

6. To provide in principle support for the draft document entitled ‘BasicUniversal Principles of Good Governance of the Olympic and SportsMovement’, which was presented to the Seminar, and to include the recom-mendations and modifications expressed during the Seminar prior to pres-entation at the 2009 Olympic Congress.

7. To immediately create the Olympic and Sports Network tasked to preserveour Autonomy and to ensure that this Network facilitates the exchange ofinformation and provides a global analysis, which will be used as a basisfor future decisions and actions where necessary.”

13 February 2008: IAAF press release, “IAAF backs autonomyof sport initiatives”

“IAAF President Lamine Diack has supported calls from the IOC and otherOlympic stakeholders to unite and act quickly to counter threats to the auton-omy of the Olympic and sports movement in general. As a member of theIOC International Relations Commission, President Diack was in Lausannefor a two day summit called the ‘Autonomy of Sport Conference.’

Seven resolutions were approved by representatives from the IOC, nationalOlympic committees and international federations gathered at the symposium.Nearly 200 delegates attended the meeting.

It was agreed that the Olympic Movement should ‘co-operate and worktogether with governments and international institutions within a frameworkof mutual respect, to make sport and its benefits available to all citizens ofthe world’. ”

104


24 April 2008: Joint declaration adopted by the Frenchand Dutch Ministers for European Affairs and responsible for Sporttogether with the governing bodies of basketball (FIBA Europe),football (UEFA), rugby (IRB, FIRA-AER), volleyball (CEV), handball (EHF),and ice-hockey (IIHF)

“1. The parties recognise the great benefits that sport brings to society, in termsof, for example, social cohesion, integration and education. As such, it is vitalthat the central role and autonomy of sports federations in the organisation,regulation and promotion of their respective sports be recognised. It is alsoessential to stimulate the European Sports Model, with its pyramidal structureand its solidarity mechanisms.

2. Following up the Franco-Dutch Memorandum of 25 October 2007 on theSpecificity of Sport in Europe, which raised a series of points to be clarified,it is possible today to start with three of the main areas of concern to teamsports in Europe: training and education, governance of clubs and players’agents. …

3. In addition to the three priority subjects mentioned above, the Europeansporting movement needs overall stability and legal security in order to pre-serve, promote and develop sport. As things stand, the European sportsfederations do not have the necessary legal security to be able to fulfil theirstatutory tasks, notably to be able to build the best national teams and tomaintain the importance and status of international matches and tournaments.

4. The French and Dutch governments have already clarified their positionon this subject in the above-mentioned Memorandum, notably by asking theEuropean Commission, which is competent and has the necessary legalmeans, to clarify the status of sport according to EU law on a certain numberof points.

5. Today, the French and Dutch governments have asked the European teamsports, in consultation with their respective international federations andinternal interest groups, to present concrete proposals, so that they can bejointly examined during the French Presidency of the European Union in orderto propose, before the end of this year, a series of concrete measures.”

July 2008: Joint declaration by European team sport federations:“Safeguarding the heritage and future of team sport in Europe”

“Preamble

Sport is facing an increasing number of legal challenges and, as a result, isgoing through a period of deep uncertainty. If we are to protect the valuesof the European sports model, it is fundamental that sporting regulations mayevolve within a stable legal environment, in order to meet the respective needsand specific circumstances of all team sports. It is essential, to maintain

105

Appendices

effective self-regulation, that sports bodies are ready and able to meet thevarious challenges, in accordance with the principle of subsidiarity.

1. Introduction

1.1. At the outset, it should be clearly stated that the need to protect the‘specificity’ of sport is not an attempt to put sport above the law. It is ratheran attempt to recognise and respect the true values of sport within the law.

1.2. This document responds to the request by various Member States of theEuropean Union to sports governing bodies to present concrete proposals tosafeguard the future development of team sport in Europe, in particular, bybetter defining the legal environment in which the relevant European sportsfederations (working under the auspices of their international federations)and their members and stakeholders operate.

1.3. Sport is of great importance to the European public and delivers manybenefits to society, especially in terms of integration, education, public health,team-work and social cohesion/inclusion. As such, it is vital that current sportsstructures be protected and that the specific characteristics of sport be takeninto account when EU law is applied in this sphere. The Nice Declaration,adopted by the Member States of the European Union in 2000, alreadypoints firmly in this direction.

1.4. The ‘White Paper’ on Sport, issued by the European Commission inJuly 2007, was the first comprehensive attempt to describe how EU law affectssport and, as such, was welcome. However, describing the issues faced bysport is not enough: it is also necessary to address the issues in a way thatdelivers legal certainty. The European Parliament has also recognised theneed to define more concretely the meaning of sporting specificity and toprovide sports bodies with the legal security they need to carry out their func-tions effectively. This will, in turn, give concrete expression to the politicalsentiment underlying the Nice Declaration.

1.5. Legal security and certainty can be delivered using a variety of EU legalinstruments, such as category exemptions, guidelines, communications orother generic rules. Article 165 of the new Treaty will (when ratified) createa further possibility, in the form of recommendations.

The European Council should now invite the European Commission to followup on the ‘White Paper’ and set out a clear definition of the specificity ofsport, employing the most appropriate legal instruments, and thus allowingfederations to organise, regulate and promote their respective sports safelywithin the framework of EU law and the principle of subsidiarity. This taskshould be carried out in conjunction with the sports governing bodies (forexample, the European sports federations as stated in both the White Paperon Sport and the European Parliament report on the White Paper), who are

106


responsible for involving their own internal ‘stakeholders’ in the decision-making process.

2. Specificity and autonomy of team sports in general: broad definition

2.1. There is no question of seeking to remove the sports sector from thescope of application of EU law. However, it is both possible and necessaryto explain in a clear way how the specificity of sport will be recognised whenEU law is applied. Appropriate guidance on the application of EU law toteam sport should cover a wide variety of subject areas and be as practicalas possible. There is a broad measure of consensus within the team sportfamily as to the subjects that should be addressed, including the need topreserve uncertainty of outcome, to foster open competition, to create a morelevel playing field, to safeguard the integrity of team sport; and generally toprotect the values of the European sports model. In several of these areasthere have already been supportive statements expressed by EU institutions,including the European Council, European Parliament, European Commissionand the Court of Justice. It is now time to put this into a more coherent legalframework.”

26 January 2009: IOC press release

“Representatives of the Olympic Movement, led by the President of theInternational Olympic Committee (IOC), Jacques Rogge, today met withJán Figel’, European Commissioner for Education, Training, Culture andYouth, and his delegation at the IOC headquarters in Lausanne. The meetingcame as a follow-up on the action points specified in the recent EuropeanCouncil Declaration on Sport, which was presented in the Conclusions ofthe French Presidency of the European Union (EU) in mid-December 2008.In the Declaration, the heads of state call on the European Commission tostrengthen its dialogue with the IOC, besides underlining the values of sportand its specific characteristics above its economic dimension. The promotionof the autonomy of the Olympic and Sports Movement as well as the protec-tion of the integrity and fairness of the competitions has been high on theIOC’s agenda over the years.

Topics of today’s discussions included:– the specificity and autonomy of sport;– the financing of sport and betting;– the application of EU competition law and of free movement principles

in the field of sport;– the fight against doping.

During the meeting, Ján Figel’ confirmed his respect for the autonomous andself-regulatory character of sports organisations. He also recognised thatsport is organised internationally and built on a worldwide pyramid system,

108


Today’s meeting allowed for an exchange of views on a number of topicscurrently on the EU agenda for sport which are of interest to internationalsport stakeholders and notably the Olympic movement. The list of topicsdiscussed included:– the financing of sport, with particular regard for the issue of sport betting

rights and fair return to sport;– the fight against doping and the results of the recent EU Conference on

Anti-Doping in Athens;– the implementation of the White Paper on Sport and the launch of a

Preparatory Action in the field of sport financed from this year’s EUbudget;

– work to be launched in the area of combined education and sports train-ing for high-level sportspeople (‘dual careers’);

– the continued structured dialogue with the sport movement, in view ofthe next EU Sport Forum to be held in April 2010 and of the possibleentry into force of the sport provisions of the Lisbon Treaty.

After the meeting, Commissioner Figel’ said that ‘the positive spirit of co-operation created in Lausanne at the beginning of the year continues toshape the dialogue between the Commission and the sport movement. TheCommission is very supportive of having a regular exchange of views onEU-related topics with the IOC and other international stakeholders.’

IOC President Rogge said the meeting ‘reaffirmed the benefits of closer co-operation between the IOC and the European Commission. Organised sporthas a unique and important role in society. By working together, we canimprove our ability to bring the benefits of sport to the European Union andfind more effective ways to combat doping, illegal betting and other threatsto sport.’”

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Jean-Loup Chappelet

ISBN 978-92-871-6720-0

http://book.coe.intCouncil of Europe Publishinge22/US$44

The Council of Europe has 47 member states, covering virtually the entire continent of Europe. It seeks to develop common democratic and legal principles based on the European Convention on Human Rights and other reference texts on the protection of individuals. Ever since it was founded in 1949, in the aftermath of the Second World War, the Council of Europe has symbolised reconciliation.

sPorts Policy and Practice series

Given the impact that successive court rulings have had on the organisation of the sports movement in the past 15 years, the autonomy of non-governmental sports organisations has become a highly topical concern in Europe. It is also closely related to the issue of governance, the subject of previous Council of Europe studies.

The Enlarged Partial Agreement on Sport (EPAS) decided to explore the concept of autonomy in greater depth by studying the conceptual, political, legal, economic and psycho-sociological aspects of the subject. This study was carried out at the request of the EPAS by the Swiss Graduate School of Public Administration (IDHEAP) on the basis of a questionnaire sent to public authorities in charge of sport and to national and international umbrella sports organisations.

In addition to an analysis of the data obtained, documents produced by public authorities and sports organisations on this emerging issue are presented. This study contributes to a better understanding of the concept of autonomy and offers a clear picture of the issues involved.

Jean-Loup Chappelet is a Professor of Public Management at the Swiss Graduate School of Public Administration (IDHEAP), University of Lausanne (Switzerland). He is specialised in governance of sports organisations and international sports policy.

The Enlarged Partial Agreement on Sport (EPAS) is an agreement between a number of Council of Europe member states (32 as of 1 January 2010) which have decided to co-operate in the field of sports policy. As an “enlarged” agreement, the EPAS is open to non-member states. It works in co-operation with relevant organisations, in particular with representatives of the sports movement.


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